A jury charge in Texas serves a specific purpose: to instruct the jury on the law applicable to the case being tried. Article 36.14 of the Texas Code of Criminal Procedure outlines the procedure and requirements for a proper jury charge. It is a critical stage in the trial process that informs the jury not only about the legal standards it must use in determining the defendant’s guilt or innocence but also about the jury’s prerogative to find a lesser-included offense or accept an affirmative defense if the facts and law permit such findings.
Article 36.14 and its application, as defined by the State’s jurisprudence, has carved out several basic prerequisites for a proper jury charge:
- It must include all the elements for the offense being tried, such as the definition of the offense (e.g., murder), the required mental state to commit the offense, and the required theories of liability (e.g., acting as principal or accomplice).
- The jury charge must be in writing, concisely and accurately, setting forth these principles of law void of any errors or omissions that could confuse the jury.
- In a murder case, the charge may contain lesser offenses (such as manslaughter), possible affirmative defenses (such as sudden passion or self-defense), and the level of liability supported by the evidence.
- Jurors must be told that a verdict of guilt has to be unanimous, and, in some cases, unanimity must decide the presence, or lack thereof, of “sudden passion” or other elements that may affect the degree of the offense or punishment.
What happens when a jury charge is incorrect or incomplete?
First and foremost, to properly preserve the issue for appellate review, defense counsel must make a timely objection, specifying how the erroneous charge injured the defendant’s rights or resulted in the denial of a fair and impartial trial.
A reversal of conviction by an appellate court may occur in a case involving a timely objection to the jury charge, provided that some “harm” to the defendant can be demonstrated.
A reversal of conviction by an appellate court will take place in a case in which no objection to the jury charge is made only if a showing of “egregious harm” to the defendant can be shown.
The case of Alkayyali v. State, decided by the Texas Court of Criminal Appeals (CCA) on May 7, 2025, dealt with the latter: a case where no timely objection was made to an incomplete jury charge.
Tareq Alkayyali, a Jordanian national, moved to Texas in 2009 and resided in Arlington, Tarrant County. He frequently traveled back to Jordan, where, in April 2017, he met Wasam Moussa. Seven months later, the couple became engaged and were married in August 2018 in Jordan.
That’s when things took a drastic turn. Just twenty-four days into the marriage Moussa told Alkayyali and her family that she wanted a divorce. The divorce did not take place. Alkayyali returned to Texas, where he worked as an IHop restaurant manager. While Moussa remained in Jordan living with her family, Alkayyali initiated the necessary paperwork for Moussa to come to the United States.
Despite these efforts by Alkayyali to bring Moussa to the U.S., she continued her request for a divorce. However, neither she nor Alkayyali filed for divorce in either Texas or Jordan. Finally, on May 18, 2019, Moussa left Jordan and came to Texas to live with Alkayyali in Arlington.
Things took a more disturbing turn just three days after Moussa arrived in Texas. Alkayyali called a co-worker while driving to work, telling her that he struck Moussa, and she started screaming. He said he covered Moussa’s mouth to stop her screaming and she “stopped breathing.” The co-worker told Alkayyali to call 9-1-1. Alkayyali returned to his apartment and called 9-1-1.
When first responders arrived at the apartment, Moussa was unresponsive, and despite CPR efforts by both the police and EMS, she could not be revived at the scene or after being transported to the hospital.
Alkayyali was indicted for murder in violation of Section 19.02(b) of the Texas Penal Code under two theories as spelled out in the indictment:
“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[.]”
The first paragraph tracks the language of Section 19.02(b)(1), while the second paragraph left out an “essential element” under Section 19.02(b)(2); namely, that a person commits the crime 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.”
The CCA pointed out the flaw in the indictment, specifically, that it charged Alkayyali intended to cause bodily injury and did commit an act clearly dangerous to human life, but the indictment did not charge that Alkayyali caused Moussa’s death. That’s significant because the prosecution proceeded with the theory that Alkayyali strangled Moussa either by choking her or by covering her mouth so she could not breathe.
Alkayyali presented the defense theory that Moussa’s death was a tragic accident, that she was constantly screaming through a series of arguments they had the day before and on the morning of her death. He testified that the screaming argument on the morning of her death became physical and that he put his hand over her mouth to stop the screaming. He said they both fell to the floor, that she bit his hand, and that he once again covered her mouth to stop the screaming, after which she fainted.
The underpinnings of his defense, supported by medical evidence and testimony, was that she had a pre-existing heart condition that required surgery, and this condition contributed to her death.
The trial judge presented a charge to the jury that while it laid out all the elements of both theories charged in the indictment, it left out the key element that “causes the death of an individual.” Alkayyali’s defense attorney did not object to this faulty jury charge.
The jury convicted Alkayyali of murder, after which he appealed—arguing that he had suffered “egregious harm“ by the trial judge’s omission of the element “causes the death“ concerning the second theory of the offense charged in the indictment. The State on appeal agreed that the jury charge was flawed but argued that Alkayyali did not suffer any “egregious harm“ as a result of the flaw.
The Court of Appeals agreed with Alkayyali, reversing his conviction in April 2023.
The CCA granted discretionary review and upheld the Court of Appeals’ reversal. The CCA concluded:
“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.”
The decisions by both courts relied heavily on the fact that because the jury was not charged with the cause of death element, it could not properly determine whether or not Moussa’s pre-existing heart condition caused her death or Alkayyali’s hand over her mouth caused her death. Because of the flawed charge, the jury, at best, could only conclude that the latter was the cause of death.
While the argument was successful in Alkayyali’s case, egregious harm is a high hurdle and often difficult to prove to the Texas Court of Criminal Appeals. It is vital that defense attorneys thoroughly review and object to jury instructions when they are deficient or flawed, thereby reducing the burden on appellate lawyers to obtain relief for their clients.
