Court of Criminal Appeals of Texas Finds Failure to Instruct Jury on Causation in Murder Trial Caused the Defendant “Egregious Harm”

Under Texas law, if a criminal defendant fails to object to an error in the jury instructions, an appellate court will only reverse if the error caused him “egregious harm.” So, is there “egregious harm” to a defendant being prosecuted for murder when the jury instructions fail to require the jury to find that the defendant caused the victim’s death? That was the question addressed by the Court of Criminal Appeals of Texas in its recent opinion in Alkayyali v. State, 2025 WL 1318487 (Tex.Crim.App. 2025).

In Alkayyali, the

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 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. Appellant told Smith that he hit Moussa, she started screaming, he covered her mouth, and then Moussa stopped breathing. 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, 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.

The prosecution thereafter charged the Appellant with murder, but the instructions failed to instruct the jury on causation, i.e.,  failed to instruct the jury that the prosecution had to prove beyond a reasonable doubt that the Appellant caused the victim’s death. On appeal, the State acknowledged this error but noted that the defense did not object to this omission and also claimed that it did not cause “egregious harm” to the Appellant.

The Court of Criminal Appeals of Texas disagreed, concluding, inter alia, that

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 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.”

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 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.

-CM