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

NEWELL, J., announced the judgement of the Court and delivered
an opinion of the Court in which SCHENCK, P.J., RICHARDSON and MCCLURE,
J.J., joined. YEARY, J., filed a concurring opinion in which SCHENCK, P.J.,
joined. FINLEY, J., filed a dissenting opinion. PARKER, J., filed a
dissenting opinion. KEEL, J., dissented. WALKER, J., did not participate.

OPINION

If a jury charge fails to require that the State prove every

contested element of an offense beyond a reasonable doubt, does this
Alkayyali — 2

result in egregious harm? Yes. In this case, the jury charge authorized

the jury to convict Appellant of murder without requiring that the jury

find beyond a reasonable doubt that Appellant caused the victim’s

death. This jury charge error resulted in egregious harm. 1 We affirm

the judgment of the court of appeals.

Background

Appellant moved to Texas in 2009 but frequently traveled back

and forth to Jordan. In April 2017, Appellant met Wasam Moussa in

Jordan. In November of that year, Appellant and Moussa were engaged,

and in August 2018, they married. Both the engagement and marriage

took place in Jordan.

Within twenty-four hours of their marriage, Moussa told Appellant

and her family that she wanted a divorce. She did not provide an

explanation as to why. Nevertheless, Moussa and Appellant remained

married. In September 2018, Appellant returned to Texas where he

worked as a manager at IHOP; Moussa continued living in Jordan.

During this time, Appellant filled out immigration paperwork for Moussa

1
See Apprendi v. New Jersey, 530 U.S. 466, 477 (2000) (noting the right to due process and
to a jury trial “entitle a criminal defendant to ‘a jury determination that [he] is guilty of every
element of the crime with which he is charged, beyond a reasonable doubt’”); In re Winship,
397 U.S. 358, 364 (1970) (“[W]e explicitly hold that the Due Process Clause protects the
accused against conviction except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged.”).
Alkayyali — 3

to come to the United States, but she continued living in Jordan with

her family. Moussa repeated her request for a divorce without providing

a reason for it. Neither she nor Appellant filed for divorce in either

Jordan or Texas.

On May 25, 2019, Moussa moved to Texas from Jordan to live with

Appellant. Three days later Appellant called Vernie “Alicia” Smith, his

friend and coworker, while he was driving to work. 2 Appellant told Smith

that he hit Moussa, she started screaming, he covered her mouth, and

then Moussa stopped breathing. 3 Smith told Appellant to call 911 and

get help. Appellant returned to the apartment and called 911. Smith

also called 911 and reported that Appellant had hit his wife, covered her

mouth, and that she was not breathing.

When officers from the Arlington Police Department arrived, they

found Moussa unresponsive on the floor. One officer checked her pulse

and began administering CPR. Paramedics then arrived, and again

checked to see if Moussa had a pulse. After confirming that she did not,

2
Prior to Moussa’s arrival in Texas, Appellant texted Smith that he hated his job, life, and
wife. Appellant also texted Smith and relayed that Moussa was being “childish” and a “bitch.”
Moussa deleted their photos from Facebook, then blocked Appellant from Facebook and
Instagram. Additional text messages were introduced between Smith and Appellant where
Appellant expressed concerns about Moussa, including her lack of respect for Appellant, that
she treated him like “shit,” and that she “has a black soul.”

3
Appellant’s first language is Arabic. He testified that the English translation of the Arabic
word for fainting is “not breathing.”
Alkayyali — 4

one paramedic took over and continued CPR. The paramedics also used

a bag volume mask to squeeze air into Moussa’s lungs before they

eventually intubated her. The paramedics performed life-saving

measures for approximately forty-five minutes between their time of

arrival and transporting Moussa to the hospital. Moussa was never

revived. 4

Trial

The State charged Appellant with the murder of Moussa. The

indictment alleged two alternate theories:

That Tareq Alkayyali, hereinafter called defendant, on or about the
28th day of May 2019, in the County of Tarrant, State of Texas,
did then and there intentionally or knowingly cause the death of
an individual, Wasam Moussa, by impeding the normal breathing
of circulation of the blood of Wasam Moussa by applying pressure
to her throat or neck with his hand or arm or by blocking her nose
or mouth with his hand or hands,

Paragraph two: and it is further presented in and to said court that
on or about the 28th day of May 2019 the defendant in the County
of Tarrant and State aforesaid did then and there intentionally,
with the intent to cause serious bodily injury to Wasam Moussa,
commit an act clearly dangerous to human life, namely, by
impeding the normal breathing or circulation of the blood of
Wasam Moussa by applying pressure to her throat or neck with his
hand or arm or by blocking her nose with his hand or hands[.]

4
The record does not state when Moussa was pronounced dead. James Anderson, one of the
paramedics, arrived at the scene at 6:45 a.m. He testified that they arrived at the hospital
at approximately 7:30 a.m. Homicide Detective Julia Hall testified that she was called at 8:00
a.m. She also testified that prior to being dispatched or called out, Moussa was pronounced
dead.
Alkayyali — 5

Section 19.02(b) of the Texas Penal Code provides the elements for the

offense of murder. 5 The first paragraph of the indictment tracks the

language of section 19.02(b)(1). 6 The second paragraph of the

indictment leaves out an essential element of the offense from section

19.02(b)(2). 7 That code section reads that a person commits the

offense of murder if that person, “intends to cause serious bodily injury

and commits an act clearly dangerous to human life that causes the

death of an individual[.]” 8 But the indictment only alleged that Appellant

had intended to cause serious bodily injury and committed an act clearly

dangerous to human life without alleging that Appellant had caused

Moussa’s death.

The State proceeded on the theory that Appellant had strangled

Moussa either by choking her or by covering her mouth so she could not

breathe. The State called Alicia Smith who recounted her phone call

with Appellant on the day of the offense. Smith testified that Appellant

5
See Tex. Penal Code Ann. § 19.02(b) (“A person commits an offense if the person: (1)
intentionally or knowingly causes the death of an individual; (2) intends to cause serious
bodily injury and commits an act clearly dangerous to human life that causes the death of an
individual”).

6
Id.

7
Id.

8
Id. (emphasis added).
Alkayyali — 6

called her and told her that he had hit Moussa, she started screaming,

he covered Moussa’s mouth, and that she was not breathing.

Paramedic James Anderson testified that after checking Moussa’s

pulse he took over CPR from a police officer. Then, Anderson testified

to using a bag volume mask, which squeezes air into a person and

breathes for them, before eventually intubating Moussa. A laryngoscope

with a camera on the end was used to determine if anything was

blocking Moussa’s airway while also helping guide the intubation tube.

Anderson testified that he found bloody frothy sputum in the back of

Moussa’s throat. He stated that it is rare to see this upon initial

intubation. It is usually seen after a tube has been placed and CPR has

been performed for some time as a result of the trauma of pushing on

someone’s chest. The State asked if frothy blood could be caused by

strangulation or smothering, and Anderson answered that it’s possible.

Anderson also recalled seeing ligature lines across Moussa’s neck.

Anderson prepared a report after treating Moussa. The report

indicated Moussa had a blocked airway, but Anderson testified that his

report did not use the word “strangled.” 9 However, the narrative notes

from the emergency room stated that EMS reported patient was

9
Under causes of injury, the EMT report states “asphyxia – airway blocked/choking
(intentional, other(assaulted)).”
Alkayyali — 7

strangled by male husband. Anderson testified that sometimes beliefs

or opinions are relayed to a doctor to help guide treatment. But

Anderson also testified that those beliefs or opinions are not noted in

their documentation because the paramedics cannot prove them.

Medical examiner Richard Fries testified about the results of

Moussa’s autopsy. 10 Dr. Fries explained that Moussa had various

lacerations and bruises on her lip as well as “indistinct” bruising on her

neck and chest. He later stated that the small bruise under Moussa’s

chin together with less prominent, faint linear red areas were consistent

with force applied at and around the neck.

Dr. Fries noted that Moussa had some blood on her face and a spot

of undried blood on her chin. He further testified that if a person is

suffocated or strangled that a foam or froth can develop in the throat.

Dr. Fries stated that Moussa had petechial hemorrhages under her scalp

but nowhere else. These can appear when the jugular vein is blocked.

They can also appear in the eyes, face, and skin, but Dr. Fries testified

that he did not find petechiae in these locations.

10
An autopsy was performed by medical examiner Marc Krouse. However, Dr. Krause did not
testify at Appellant’s trial because, at that time, he had been terminated from the medical
examiner’s office due to his “lack of due diligence” in many of his autopsy reports. Dr. Fries
testified at trial based on his own conclusions after examining the autopsy report and the
pictures produced for that report.
Alkayyali — 8

Dr. Fries also explained that there was evidence Moussa had an

issue with her cardiovascular system, specifically a ventricular septal

defect. He stated that this defect, commonly referred to as a “hole in

the heart,” was repaired and intact. However, Dr. Fries also testified

that even if Moussa’s heart repair was not in place, it would take a long

time for a young person to go into heart failure.

Additionally, Dr. Fries discussed Moussa’s EKG from 2018, which

showed nonspecific changes. These changes were to be expected

because Moussa’s hole was in her septum, and because the conduction

system runs through there, some irregularities are expected. Therefore,

Moussa’s 2018 EKG was considered normal. After reviewing the autopsy

report and photos of Moussa, Dr. Fries classified her death as homicide

and asphyxia.

Appellant proceeded on the theory that Moussa’s death was a

terrible and tragic accident. Appellant testified at trial that there was

tension between himself and Moussa as soon as she arrived in Texas.

Moussa occupied the apartment bedroom alone, leaving Appellant to

sleep on the couch for three nights. Appellant explained that the day

before the victim’s death, he and Moussa agreed to divorce after a loud

argument. During the argument, Moussa began screaming and

Appellant moved toward her to put his hand over her mouth. Appellant
Alkayyali — 9

stopped after Moussa screamed “don’t touch me.” The next morning,

Appellant and Moussa argued again as Appellant prepared for work. The

argument became physical, and Appellant pushed Moussa. She yelled,

and Appellant put his hand over her mouth to stop her yelling. The two

fell to the floor at which point Moussa bit Appellant causing him to

release his hand. However, Appellant again put his hand over Moussa’s

mouth to prevent her from yelling, and then she fainted.

Appellant testified that he carried Moussa to the bedroom after she

fainted. He then called his manager, Lauren Hastings, around 6 a.m. to

explain he would be late for work. Then he left. He returned to the

apartment after speaking with Alicia Smith and calling 911, as described

above. Appellant testified that things would be different if he had just

left that morning to go to work.

Appellant presented testimony to develop the theory that Moussa’s

death was an accident and that she died due to her pre-existing heart

condition, a condition which required surgery. For example, Appellant,

as well as his sister, testified that Moussa fainted at their wedding. A

wedding guest, who happened to be a doctor, encouraged Moussa to

get checked out. Days after the wedding, Moussa complained of chest

pain and shortness of breath. Appellant took Moussa to the hospital

where lab evaluations were ordered as was emergency room
Alkayyali — 10

management. However, Moussa refused any treatment and was

discharged from the hospital against medical advice.

Dr. Fries testified that Moussa’s heart defect abutted her

conduction system, which regulates a person’s heartbeat. Dr. Fries

stated that if a person has an irregular heartbeat, it can cause fainting.

Furthermore, Dr. Fries noted that Moussa’s hyoid bone was intact, which

is evaluated in cases of strangulation. Additionally, Dr. Fries testified

that Moussa did not have any bruising in her neck muscles, and further

noted that Moussa did not have any ligature marks around her neck

despite the testimony of James Anderson, the paramedic who testified

that Moussa had ligature lines on her neck.

After the close of evidence, the court presented the jury with its

charge. The abstract paragraph of the jury charge stated:

A person commits the offense of murder if he intentionally or
knowingly causes the death of an individual; or if he intends to
cause serious bodily injury and commits an act clearly dangerous
to human life that causes the death of an individual.

The abstract paragraph of the jury charge instructed the jury on the

elements of the offense. It included all the statutory elements for both

theories of murder presented to the jury.

However, the application paragraph of the jury charge tracked the

language of the indictment. It omitted the element “that causes the
Alkayyali — 11

death of an individual” from the second paragraph. So, while the first

application paragraph required the jury to find every element of the

offense beyond a reasonable doubt, the second application paragraph

did not. Instead, the second paragraph informed the jury that it could

nevertheless convict without determining whether Appellant’s actions

caused the victim’s death. Appellant did not object to the defective jury

instructions.

The State and Appellant relied upon different theories during

closing arguments regarding the cause of Moussa’s death. The State

maintained that Appellant strangled and smothered Moussa causing her

death. In its closing argument, the State pointed to Dr. Fries’ testimony

and to Moussa’s contusions, abrasions, and petechiae on her scalp.

These, the State posited, indicated that Appellant strangled and

smothered Moussa for minutes.

The State noted that Appellant himself told Alicia Smith that he

was going to jail for the rest of his life in a phone call he made to Smith

prior to his calling 911. Furthermore, the State interpreted Appellant’s

testimony that things would be different if he had just left that morning

to go to work and booked tickets so he and Moussa could return to

Jordan to divorce as an admission to killing her. Additionally, the State

argued that Moussa’s heart repair was intact and not a cause for
Alkayyali — 12

concern. Turning to the fact that Appellant was bitten, the State

surmised that Moussa bit Appellant because he was smothering her. And

the bloody froth was a result of Moussa gasping for air while being

suffocated.

Appellant’s defensive theory sought to characterize the death of

Moussa as a terrible and tragic accident. Appellant pointed to Moussa’s

repaired heart and numerous fainting episodes after her heart surgery.

In his closing argument, Appellant noted that the extent of Moussa’s

heart problem was unknown because she refused to let anyone treat

her. Appellant reiterated that Dr. Krouse, the original and non-testifying

medical examiner, was fired for his lack of due diligence. Appellant

contended, Dr. Krouse simply accepted that Moussa was strangled, as

relayed in the emergency room reports, and did not work very hard on

the autopsy given his lack of due diligence.

Appellant further argued in closing that Moussa had petechiae on

her scalp but nowhere else. The bruising on her neck was superficial,

and there was no damage to her larynx or cartilage. Appellant

suggested that if you intend to kill someone, the hyoid bone is going to

be broken and there will be damage to the larynx and neck muscles.

Lastly, Appellant pointed to the fact that his finger was bitten. He

moved his hand back and forth to get his finger loose, applying some
Alkayyali — 13

force to Moussa’s neck to get his finger back. Appellant concluded his

argument by stating, “please, when you’re looking at this evidence,

you’ve got to hold the State to their burden and they have to prove this

beyond all reasonable doubt that [Appellant] intended or knowingly

killed her, and that is just not the case.”

Appeal

After the jury convicted Appellant of murder, he appealed his

sentence. On appeal, Appellant argued, among other things, that he

was egregiously harmed by the omission of the “causes the death of”

element from the second theory alleged in the jury charge’s application.

The court of appeals addressed this error first, finding its resolution

dispositive in this case. 11 Appellant contended that this error in the

instruction allowed the jury to convict him of murder without requiring

the jury to find that he caused Moussa’s death. 12 While the State agreed

there was error in the jury charge, it argued that Appellant did not suffer

egregious harm as a result. 13

11
Alkayyali v. State, 668 S.W.3d 445, 452 n.9 (Tex. App.—Fort Worth 2023, pet. granted).

12
Id. at 452.

13
Id.
Alkayyali — 14

The court of appeals analyzed each of the four Almanza factors to

determine if Appellant suffered egregious harm. 14 First, the court of

appeals explained that “the application paragraph authorized [the jury]

to convict [Appellant] of murder without having to find beyond a

reasonable doubt that he caused Moussa’s death.” 15 Second, the court

of appeals held that the state of the evidence weighed in favor of

egregious harm because “[i]f even a single juror was persuaded that

Moussa’s health issues created enough reasonable doubt as to the cause

of her death, then [Appellant] could not have been convicted of

murder.” 16 As to the third Almanza factor, arguments of counsel, the

court of appeals held that it did not weigh in favor of egregious harm,

but the court did not provide much analysis on this point. 17 Finally, the

court looked at other relevant record information and held that this

factor weighed in favor of egregious harm because the error affected

Appellant’s defensive theory. 18

14
Id. at 453; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).

15
Alkayyali, 668 S.W.3d at 454.

16
Id.

17
Id.

18
Id.
Alkayyali — 15

After reviewing all four factors, the court of appeals concluded the

jury charge error resulted in egregious harm. 19 The court of appeals

reversed Appellant’s conviction of murder and remanded the case to the

trial court. 20 The State sought discretionary review.

Discretionary Review

We granted the State’s petition which raises the following issue:

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?

The State argues that the court of appeals reversed on purely theoretical

harm. First, the State argues that a missing element is not proof of

harm but rather the reason for a harm analysis. Next, the State

contends that Appellant’s chief defensive theory focused on a lack of

criminal mental state rather than causation. Additionally, the State

argues that the evidence does not show a viable causation argument

and that there is no evidence to rationally support the argument that

19
Appellant raised numerous points of error on appeal. Because Appellant’s sufficiency of the
evidence argument was not raised in his petition for discretionary review, we will limit our
discussion to whether or not he suffered egregious harm as a result of the jury charge error.
However, the court of appeals did conclude that there was legally sufficient evidence to
support the jury’s verdict despite agreeing with Appellant that he suffered egregious harm as
a result of the jury charge error. Id. at 455-56.

20
Id. at 457.
Alkayyali — 16

Appellant did not cause Moussa’s death, alone or in conjunction with her

alleged fainting problem.

Standard of Review

The Supreme Court has recognized that the failure of a jury

instruction to require a finding of an element of an offense beyond a

reasonable doubt is not structural error and is subject to a harm

analysis. 21 We recognized this in Niles, but in that case the element at

issue was not contested. 22 In this case, it was.

When there is a claim as to jury charge error, there are two

standards of review based on whether a defendant objected to the

charge. 23 When a defendant objects to error in the jury charge,

reviewing courts consider whether the error at issue resulted in some

harm. 24 Some harm requires reversal “if the error is ‘calculated to injure

the rights of the defendant,’” meaning the error cannot be harmless. 25

When a defendant fails to object to error in the jury charge, reviewing

21
Niles v. State, 555 S.W.3d 562, 570 (Tex. Crim. App. 2018) (citing Neder v. United States,
527 U.S. 1 (1999)).

22
Id. at 571.

23
Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim. App. 2022).

24
Id.

25
Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013) (quoting Almanza, 686
S.W.2d at 171).
Alkayyali — 17

courts consider whether the error results in egregious harm. 26 “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.” 27 Furthermore, egregious harm must be based on

actual harm rather than a finding of theoretical harm. 28

Egregious harm is a fact-specific analysis and is a difficult standard

to meet. 29 To determine whether jury charge error resulted in egregious

harm we look at the entire record. 30 Specifically, we consider (1) the

entirety of the 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. 31

26
Alcoser, 663 S.W.3d at 165. Judge Finley argues that we should not hold there was
egregious harm because doing so might incentivize defense attorneys to fail to object, but
this would be true in any circumstance in which error amounted to egregious harm, and no
one has asked this Court to revisit Almanza v. State. More importantly, the responsibility for
properly instructing the jury on the law applicable to the case falls on the trial court not the
litigants. See Tex. Code Crim. Proc. Ann. art. 36.14 (“[T]he judge shall, before the argument
begins, deliver to the jury, except in pleas of guilty, where a jury has been waived, a written
charge distinctly setting forth the law applicable to the case[.]”).

27
Alcoser, 663 S.W.3d at 165.

28
Id.; see also Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011).

29
Alcoser, 663 S.W.3d at 165.

30
Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016).

31
Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015); Almanza, 686 S.W.2d at
171.
Alkayyali — 18

Analysis

Just as the court of appeals did below, we will review each of the

four factors in turn. We agree with the court of appeals that the first

factor—the entirety of the jury charge—weighs in favor of finding

egregious harm. In this case, the abstract or definitional portion of the

charge properly defined murder under Section 19.02(b)(2). However,

the application paragraph failed to require the jury to properly apply

those definitions. Error in the abstract paragraph of a jury charge does

not constitute egregious harm when the application paragraph correctly

instructs the jury. 32 Reversible error may occur when the abstract

paragraph fails to provide a statutory definition of an element needed

by the jury to determine whether the State proved the element beyond

a reasonable doubt. 33 We see no reason why a failure in the application

paragraph should be treated differently.

As the instrument by which a jury is empowered to conviction, jury

charges are meant to inform the jury of how to apply the applicable law

to the facts of the case. 34 The charge “must contain an accurate

32
Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999); see also Meanes v. State, 668
S.W.2d 366, 374-75 (Tex. Crim. App. 1983) (noting that the defendant in a capital murder
case did not show how he was harmed when there was an absence of an abstract charge on
capital murder but the application paragraph effectively defined capital murder).

33
MacDougall v. State, 702 S.W.2d 650, 652 (Tex. Crim. App. 1986).

34
Alcoser, 663 S.W.3d at 164-65.
Alkayyali — 19

statement of the law and must set out all the essential elements of the

offense.” 35 The 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.” 36 The application paragraph is the

section of the jury charge that applies “‘the pertinent penal law, abstract

definitions, and general principles to the particular facts and the

indictment allegations.’” 37

Not all errors in the application paragraph amount to egregious

harm, however. In Vasquez, for example, this Court held that the

defendant was not egregiously harmed when the trial court failed to

directly incorporate the abstract definition of the law of parties in the

application paragraph. 38 But in Vasquez, the application paragraph still

incorporated the proper definition of the law of parties from the abstract

paragraph by reference. 39 Conversely, this Court has that held the

35
Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012) (quoting Dinkins v. State,
894 S.W.2d 330, 339 (Tex. Crim. App. 1995)).

36
Id. at 366.

37
Campbell v. State, 664 S.W.3d 240, 246 (Tex. Crim. App. 2022) (quoting Vasquez, 389
S.W.3d at 366).

38
Vasquez, 389 S.W.3d at 372.

39
Id. at 371 (noting that the application paragraph “explicitly stated that the jury should
find appellant guilty if, ‘acting alone or as a party (as herein defined)”).
Alkayyali — 20

omission of sudden passion as an element of voluntary manslaughter

from an application paragraph resulted in egregious harm. 40 In Ruiz,

the State charged the defendant with murder and voluntary

manslaughter for a shooting at a club. 41 At the trial, the jury charge

defined both murder and voluntary manslaughter, but the application

paragraph failed to apply the element of sudden passion to the offense

of murder. 42 This Court held that “on the facts of this case, omission of

the element of the absence of sudden passion from the charge on

murder denied appellant a fair and impartial trial.” 43

In this case, the abstract paragraph of the jury charge stated:

A person commits the offense of murder if he intentionally or
knowingly causes the death of an individual; or if he intends
to cause serious bodily injury and commits an act clearly
dangerous to human life that causes the death of an
individual.

40
Ruiz v. State, 753 S.W.2d 681, 687 (Tex. Crim. App. 1988). At the time of the offense in
Ruiz, the statute for voluntary manslaughter included sudden passion as an element of
murder. “A person commits an offense if he causes the death of an individual under
circumstances that would constitute murder under Section 19.02 of this code, except that he
caused the death under the immediate influence of sudden passion arising from an adequate
cause." Tex. Penal Code Ann. § 19.04 (1973). The current statute, now titled “Manslaughter,”
does not include the element of sudden passion. Tex. Penal Code Ann. § 19.04.

41
Ruiz, 753 S.W.2d at 682.

42
Id. at 682-83.

43
Id. at 687.
Alkayyali — 21

This section of the jury charge tracks the language of Texas Penal Code

section 19.02(b). And the first section of the application paragraph, the

section that allows the jury to convict a defendant, also included this

language:

Now, if you find from the evidence beyond a reasonable
doubt that the Defendant, Tareq Alkayyali, on or about the
28th day of May, 2019, in County of Tarrant, State of Texas,
did then and there intentionally of knowingly cause the death
of an individual, Wasam Moussa, by impeding the normal
breathing or circulation of the blood of Wasam Moussa by
applying pressure to her throat or neck with his hand or arm
or by blocking her nose or mouth with his hand or hands. . .

But the second section of the application paragraph omitted the element

“causes the death of”:

or if you find from the evidence beyond a reasonable doubt
that the Defendant, Tareq Alkayyali, on or about the 28th
day of May, 2019, in the County of Tarrant, State of Texas,
did then and there intentionally, with the intent to cause
serious bodily injury to Wasam Moussa, commit an act clearly
dangerous to human life, namely, by impeding the normal
breathing or circulation of the blood of Wasam Moussa by
applying pressure to her throat or neck with his hand or arm
or by blocking her nose or mouth with his hand or hands,
then you will find the Defendant guilty of the offense of
murder.

As written, the jury charge authorized the jury to convict the defendant

of murder without determining if his actions went beyond committing

an act clearly dangerous to human life because the element “causes the

death of” was missing from the application paragraph for that theory of
Alkayyali — 22

murder. If the jury believed Appellant’s defense that he did not intend

to cause Moussa’s death, it would have been forced to move to the

second paragraph. Applying the second paragraph, the jury’s inquiry

would be complete upon determining that Appellant’s conduct was an

act clearly dangerous to human life without deciding whether Appellant

caused Moussa’s death, essentially gutting Appellant’s defensive theory.

This factor weighs in favor of egregious harm.

Next, we consider the state of the evidence, including contested

issues and the weight of the probative evidence. 44 Again, we agree with

the court below that this factor weighs in favor of egregious harm. 45

The 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. 46 In Sanchez, the defendant was charged with

official oppression, which includes the element “intentionally subjects

another to sexual harassment.” 47 “‘[S]exual harassment’ means

unwelcome sexual advances, requests for sexual favors, or other verbal

44
Almanza, 686 S.W.2d at 171.

45
Alkayyali, 668 S.W.3d at 454.

46
Sanchez v. State, 209 S.W.3d 117, 125 (Tex. Crim. App. 2006).

47
Id. at 118 n.1; Tex. Penal Code Ann. § 39.03(a)(3).
Alkayyali — 23

or physical conduct of a sexual nature, submission to which is made a

term or condition of a person’s exercise or enjoyment of any right,

privilege, power, or immunity, either explicitly or implicitly.” 48 The jury

charge’s definition for sexual harassment followed the same ambiguous

terms that the statute utilizes. 49 Because of this ambiguity, the jury

charge did not clearly inform the jury that it had to find the defendant’s

sexual advances as well as his requests for sexual favors and other

sexual conduct unwelcome in order to find him guilty. The jury charge

also failed to inform the jury that the defendant had to be aware that

any of his sexual conduct was unwelcome. The application paragraph

did not ameliorate these deficiencies. 50

There was conflicting evidence at trial in Sanchez on the elements

of “sexual harassment.” 51 For example, there was evidence that the

defendant frequently called the complainant at home and that one Board

member was concerned about their relationship. 52 Additional evidence

indicated that the complainant spent a great deal of time in the

48
Tex. Penal Code Ann. § 39.03(c).

49
Sanchez, 209 S.W.3d at 122.

50
Id.

51
Id. at 122-23.

52
Id. at 123.
Alkayyali — 24

defendant’s office with the door closed. 53 Evidence was presented that

the complainant followed the defendant around the office, even waiting

for him outside of the men’s restroom. 54 But there was also testimony

that the defendant was heard telling the complainant that “he didn’t

need a shadow[.]” 55 Thus, there was contested evidence as to whether

the defendant’s conduct was of a sexual nature, or if it was, whether the

defendant was aware it was and that it was unwelcome. 56 The jury

charge authorized the jury to convict the defendant without the State

proving at least two elements of the offense of official oppression

beyond a reasonable doubt causing the defendant to suffer egregious

harm. 57

In this case, the cause of Moussa’s death was a disputed element

of murder under Section 19.02(b)(2). The first part of the application

paragraph required the jury to determine beyond a reasonable doubt

that Appellant had caused Moussa’s death under one theory of murder.

But the second part of the application paragraph did not. It authorized

53
Id.

54
Id.

55
Id.

56
Id. at 124.

57
Id. at 125.
Alkayyali — 25

the jury to convict Appellant of murder without ever deciding whether

he caused Moussa’s death. In this way, the jury reading the charge

could essentially disregard any of the evidence Appellant pointed to

under his defensive theory that the murder had been an accident.

The State argues that the issue of causation was not seriously

contested. It contends that Appellant effectively conceded the issue of

causation because Appellant’s testimony reflected acceptance of

responsibility for Moussa’s death and instead focused on whether he

intended for her to die. We disagree. The record shows that Appellant

developed evidence to undermine the State’s evidence regarding not

just his culpable mental state, but also Moussa’s cause of death. And

as the court of appeals stated, “[i]f even a single juror was persuaded

that Moussa’s health issues created enough reasonable doubt as to the

cause of her death, then [Appellant] could not have been convicted of

murder.” 58

Appellant’s defensive theory largely focused on Moussa’s heart

condition and fainting episodes. During the direct examination of

Appellant’s sister, she testified to the fact that Moussa fainted at

Appellant and Moussa’s wedding. A relative and doctor attending the

58
Alkayyali, 668 S.W.3d at 454.
Alkayyali — 26

wedding helped. Appellant also testified about this incident. Appellant

stated that the doctor-relative encouraged Moussa to check-in with her

heart surgeon.

Appellant also testified to an incident that occurred a few days

after the wedding. After Moussa complained of chest pains and

shortness of breath, Appellant took her to the hospital. Despite orders

for emergency room management and lab evaluations, Moussa refused

treatment and left the hospital against medical advice. While we do not

agree with the court of appeals that the cause of death was “hotly”

contested, it is nevertheless clear from the record that the issue of

causation was contested and not assumed as the State argues. And

because the cause-of-death element was not included in the application

paragraph, this factor weighs in favor of egregious harm.

The third factor to consider—arguments of counsel—also relates to

causation. During opening statements, defense counsel informed 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. So, from the onset, Appellant at least

suggested Moussa’s health issues might have caused her death.

However, the State points to defense counsel’s closing argument when

counsel stated Appellant would take back what happened that morning
Alkayyali — 27

if he could. According to the State, this is a statement of responsibility,

or “but for” causation. We disagree.

While neither party directly argued Appellant could be convicted

without a finding of causation, Appellant’s counsel’s argument combined

challenges to both intent and causation. Specifically, Appellant argued

that this was a terrible accident. We do not take this to mean Appellant

conceded causation as the State suggests. The fact that Appellant

repeatedly referenced Moussa’s heart condition and fainting episodes

during closing argument points to a challenge to the cause of the

victim’s death. While he argued that he did not knowingly or

intentionally cause Moussa’s death or that he did not intend to cause

her serious bodily injury, by emphasizing her heart condition and her

fainting episodes he also sought to cast doubt upon the cause of death

as well. Indeed, Appellant focused on this by asking, during closing

arguments, “[w]ho knows the extent of her heart problem?” He

emphasized that the answer is “we don’t know” because Moussa would

not let anyone look at or treat her.

Furthermore, Appellant argued that he was not even reckless

because it was not possible to predict that this event would even cause

her death. Contrary to the State’s contention, Appellant did not

effectively concede the cause of death during the trial. At best,
Alkayyali — 28

Appellant’s arguments were at least a mixed bag and, therefore, this

factor is a wash on the question of whether there was egregious harm.

The other relevant record information also weighs in favor of

determining that Appellant suffered egregious harm from the jury

charge error. While Moussa’s health issues were clearly a part of

Appellant’s defensive strategy, he contested several other issues as to

causation. Dr. Fries testified that when a person is smothered, they can

develop a foam or froth in the throat due to the diaphragm moving up

and down trying to move air in the lungs. While Appellant did not

provide expert testimony as to other causes for the foam or froth, he

did suggest that chest compressions, which Moussa received, could have

provided at least a reasonable explanation that was independent of

smothering.

Appellant also cast doubt on asphyxia as the cause of Moussa’s

death by pointing to testimony that undercut such a finding. 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. He also

testified that there was bruising on her neck but that the bruising did

not extend to her muscles. Additionally, there was no damage to

Moussa’s hyoid bone nor any to the cartilage of her thyroid and larynx,
Alkayyali — 29

all of which are examined in cases of strangulation. While we do not

suggest that the evidence establishing the murder was legally

insufficient, it is enough to say in this case that the issue of the cause

of death was contested. We agree with the court of appeals that under

the Almanza factors, the omission of the cause of death element in the

jury charge resulted in egregious harm.

Conclusion

In this case, the application paragraph of the jury charge did not

include the “causes the death of” element of murder under Section

19.02(b)(2) of the Texas Penal Code. As a result, the jury charge failed

to require that the State prove every element of the offense of murder

beyond a reasonable doubt. After reviewing the record, we agree with

the court of appeals that Appellant suffered egregious harm in this case.

Therefore, we affirm the judgment of the court below.

Delivered: May 7, 2025

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