Tareq Alkayyali v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00197-CR
___________________________
TAREQ ALKAYYALI, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 396th District Court
Tarrant County, Texas
Trial Court No. 1598293D
Before Kerr, Birdwell, and Walker, JJ.
Opinion by Justice Walker
OPINION
After a jury trial, Appellant Tareq Alkayyali was convicted of murdering his
wife and sentenced to 23 years’ confinement. Alkayyali raises ten points of error
related to the jury charge, the effectiveness of his trial counsel, the sufficiency of the
evidence, and various evidentiary rulings made by the trial court. Because Alkayyali
was egregiously harmed by the undisputed jury-charge error in this case, we will
reverse and remand to the trial court for further proceedings.
I. BACKGROUND
A. FACTUAL BACKGROUND
Alkayyali grew up in Jordan but moved to Texas in 2009. In November 2017,
Alkayyali and Wasam Moussa were engaged in Jordan and celebrated their wedding
there in August 2018. Throughout the engagement and after the wedding, Moussa
frequently indicated that she did not want to be married to Alkayyali and began
requesting a divorce as soon as the day after the wedding.
On the night of the wedding, Moussa fainted but quickly regained
consciousness. Alkayyali testified that Moussa had “been having the fainting most of
the time” and that he “used to hear that whenever she go to work or she go to school,
she would faint from, like, no reason.”1 A few days after the wedding while the
couple was still in Jordan, Moussa started shaking and complaining of breathing
1
English was not Alkayyali’s first language and he testified that he struggles to
explain himself in English and that “[a] lot of people they correct whatever I say.”
2
troubles and chest pains, so Alkayyali took her to the emergency room. According to
Alkayyali, her heart rate “wasn’t stable” but she refused treatment and left the
emergency room against a doctor’s recommendation. Alkayyali also testified that
Moussa fainted again at work later that month.2
Alkayyali returned to Texas alone about a month after the wedding, where he
continued working as a manager at a local restaurant. Moussa continued to ask for a
divorce and Alkayyali continued to decline, expressing frustration to Moussa’s family
that she would not give a reason for wanting a divorce. In spite of this, Moussa came
to live with Alkayyali in Texas on May 25, 2019.
On the day of Moussa’s arrival, Alkayyali had text conversations with Vernie
“Alicia” Smith, a friend and manager at the restaurant. In these messages, Alkayyali
expressed frustrations about his relationship with Moussa saying that she did not
respect him, treated him like “shit,” and that he was unable to joke with or touch her.
He said that his “situation [was] bad” and that he was sure that Moussa had “a black
soul.” Later that day, Alkayyali texted Smith that he did not “feel good” and that he
hated his life. He continued that he loved Moussa but that he wanted his “old wife”
as he used to know her.
2
Evidence also established that Moussa had previously suffered from a
ventricular septal defect (VSD)—a hole in her heart—that was surgically repaired in
2013.
3
Alkayyali testified that the relationship continued to be strained after Moussa
arrived in Texas such that Moussa slept in the bedroom and he slept on the couch.
On May 27, Moussa sent Facebook messages to her brother saying that she and
Alkayyali had argued loudly and that he moved toward her to put his hands over her
mouth. But he stopped when she screamed “don’t touch me.” That night, Alkayyali
and Moussa agreed to divorce.
Alkayyali testified that, on the morning of May 28, he and Moussa argued as he
prepared to go to work. He said that he pushed Moussa, that she started yelling, and
that he put his hand over her mouth to stop her from yelling. They then fell to the
floor, she bit him, and he released his hand; he put his hand over her mouth again to
stop her from yelling, and then she fainted. He testified that he thought she merely
fainted as in previous instances. He then carried her and set her unconscious on the
bed. Around 6:00 a.m., Alkayyali called a manager at the restaurant—Lauren
Hastings—to say he would be late for work and left the apartment.
While driving, Alkayyali called Smith at 6:29 am. He told Smith that he had hit
his wife and covered her mouth, that she was not breathing,3 and that he was going to
jail for the rest of his life. Smith told him to get help and to call 9-1-1. Alkayyali
returned to the apartment and called 9-1-1. Police arrived and began CPR on Moussa
and then a paramedic continued the CPR and intubated her, but they were unable to
Alkayyali testified that the English word “fainting” is translated literally into
3
Arabic as “not breathing.”
4
revive her. The paramedic testified that he noticed bloody sputum in Moussa’s throat
and “ligature lines” on her neck that, to him, indicated that she had been strangled
with an object such as rope or a belt.
Medical examiner Marc Krouse performed Moussa’s autopsy and concluded
that the cause of her death was “homicide or death at the hands of another and
asphyxia.” However, Krouse did not testify at trial because he had since been
terminated from his position at the medical examiner’s office for “lack of due
diligence” displayed in many of his autopsy reports. A peer review of forty-one of
Krouse’s autopsies revealed that he had made errors—at least one serious enough to
change the cause of death from homicide to undetermined—in about twenty-five of
those cases.4
Testifying from Krouse’s autopsy report and pictures, medical examiner
Richard Fries observed that Moussa had various lacerations and bruises on her lip and
also “indistinct” bruising on her neck and chest. When asked about the bloody
sputum observed by the paramedic, Fries explained that such a substance can appear
when a person is suffocated or strangled manually. Further, the autopsy revealed
petechiae5 under Moussa’s scalp. She did not, however, have any bruising under the
4
Moussa’s autopsy was not one of the forty-one included in this investigation.
Richard Fries testified, however, that Krouse’s autopsy of Moussa had been peer-
reviewed by at least five additional medical examiners.
5
Fries explained that petechiae sometime appear in the scalp and other places
on the body when a person’s jugular vein is obstructed—for instance if they are being
5
skin in her neck or any broken bones in her neck. Nor did the autopsy show any
ligature marks to suggest that Moussa had been strangled using an object. Based on
the evidence, Fries agreed that Moussa’s death was properly classified as a homicide
by asphyxia. He said that to manually strangle or smother someone to death would
take “minutes.”
Fries also discussed Moussa’s VSD repair, stating that it was intact at the time
of her autopsy and that it was his opinion that it did not contribute to her death.
According to Fries, even had the VSD not been repaired, he would not expect it to
have caused immediate death but rather to have led to progressive and protracted
heart failure.
On the autopsy report, Krouse noted that Moussa’s VSD was “abutting the
conduction system.” When asked about this notation on cross-examination, Fries
explained that the heart’s conduction system regulates a person’s heart rate. He
testified that the conduction system can be implicated when a person experiences an
irregular heartbeat and fainting episodes, which can lead to death. And it is not
uncommon when performing an autopsy on a person who has died from an irregular
heartbeat for there to be “no documentable anatomic findings,” which might lead the
medical examiner to arrive at an undetermined cause of death. He surmised, however,
that Krouse included the conduction-system notation to simply describe the location
strangled—and blood cannot escape the brain, causing capillaries to burst and
hemorrhage.
6
of Moussa’s VSD. He also pointed out that in 2018 Moussa had a “normal
echocardiogram” that had not raised any concerning issues with her heart.
B. INDICTMENT AND JURY CHARGE
Alkayyali was charged with Moussa’s murder. The indictment against him
contained two paragraphs alleging alternate theories of the murder:
That Tareq Alkayyali . . . did then and there intentionally or 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.
That [Alkayyali] 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.
Though the second paragraph omitted an element of the offense—that the act
“causes the death of an individual”—Alkayyali did not object to the indictment. See
Tex. Penal Code Ann. § 19.02(b) (providing the elements for the offense of murder).
The jury charge instructed the jury members that they had “no right to
disregard or give special attention to any one instruction, or to question the wisdom
or correctness of any rule [the trial court] may state” and that it was their “duty to
apply the law as [the trial court] explain[ed] it to [them], regardless of the
consequences.” The abstract paragraph of the charge correctly included the “causes
the death of an individual” element in the second theory. However, the application
7
paragraph omitted that element and instructed the jury that it must find Alkayyali
guilty of murder if it found beyond a reasonable doubt that he
intentionally or knowingly cause[d] 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; or [if it
found that he] intentionally, with the intent to cause serious bodily injury
to Wasam Moussa, commit[ted] 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 . . . .6
[emphasis added]
Alkayyali did not object to the jury charge at trial.
C. OTHER RELEVANT RECORD INFORMATION
At voir dire and in closing arguments, both the State and Alkayyali’s attorney
discussed generally the elements of murder, including that a person’s guilt arises only
if his actions “cause the death” of the victim. However, before the evidence opened,
the State read verbatim the indictment in the presence of the jury, which omitted the
“causes the death of” language from the second theory. And contested issues about
Moussa’s fainting, heart issues, and ultimate cause of death featured prominently in
the opening and closing arguments of both the State and defense. Finally, at the
punishment phase of trial, the jury was asked to determine the special issue of
The application paragraph also contained instructions for the lesser-included
6
offenses of manslaughter and criminally negligent homicide; both of these instructions
included the “causes the death of an individual” element. See Tex. Penal Code
Ann. §§ 19.04, 19.05 (providing the elements for the offenses of manslaughter and
criminally negligent homicide).
8
whether Alkayyali murdered Moussa “under the immediate influence of sudden
passion arising from an adequate cause.” During their deliberations, the jury sent a
note to the trial court that asked how they should proceed if they did “not all agree it
was sudden passion[?]”7
In the end, the jury found Alkayyali guilty of murder and sentenced him to
twenty-three years’ confinement.
II. STANDARD OF REVIEW AND RELEVANT LAW
When, as here, the defendant does not object to jury-charge error8 at trial and
raises the issue for the first time on appeal, reversal is warranted only if the error
resulted in egregious harm. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App.
2013); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Egregious harm
is a difficult standard to meet and should be determined on a case-by-case basis.
Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016); Villarreal v. State,
453 S.W.3d 429, 433 (Tex. Crim. App. 2015). “[C]ourts are required to examine the
relevant portions of the entire record to determine whether [the defendant] suffered
actual harm, as opposed to theoretical harm, as a result of the error.” Marshall,
7
The trial court responded: “[i]n response to your note, please continue to
deliberate,” and the jury ultimately found that sudden passion did not exist.
8
The State concedes, and we agree, that charge error occurred here because the
application paragraph omitted an essential element of the offense of murder under
Section 19.02(b)(2) of the Texas Penal Code. See Mendez v. State, 545 S.W.3d 548, 553
(Tex. Crim. App. 2018); Flores v. State, 48 S.W.3d 397, 402 (Tex. App.—Waco 2001,
pet. ref’d).
9
479 S.W.3d at 843 (emphasis in original); Almanza, 686 S.W.2d at 174. “Charge error
is egregiously harmful if it affects the very basis of the case, deprives the defendant of
a valuable right, or vitally affects a defensive theory.” Villareal, 453 S.W.3d at 433;
Almanza, 686 S.W.2d at 172. In examining the record to determine whether charge
error has resulted in egregious harm, 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. Villareal, 453 S.W.3d at 433; Almanza, 686 S.W.2d at 171.
In Texas, a person commits the offense of murder if he “(1) intentionally or
knowingly causes the death of an individual” or “(2) intends to cause serious bodily
injury and commits an act clearly dangerous to human life that causes the death of an
individual.” Tex. Penal Code Ann. § 19.02(b)(1)–(2). When more than one possible
theory of a single criminal offense is alleged, the jury need not be unanimous as to
which theory it relied upon in reaching its verdict. Young v. State, 341 S.W.3d 417, 422
(Tex. Crim. App. 2011).
III. DISCUSSION
In his second point of error,9 Alkayyali argues 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 paragraph. According to Alkayyali, the charge
9
We address Alkayyali’s second point of error first because its resolution will
prove dispositive of the case. See Tex. R. App. P. 47.1.
10
impermissibly allowed the jury to convict him for murder without requiring it to find
that he caused Moussa’s death. While the State agrees that there was charge error, it
contends that the record taken as a whole does not show egregious harm.
In support of his argument, Alkayyali relies heavily on Flores v. State, a case with
remarkably similar charge-error facts. See 48 S.W.3d 397, 401–03 (Tex. App.—Waco
2001, pet. ref’d). Flores was tried for murder but the jury convicted him on the lesser-
included offense of criminally negligent homicide. Id. at 403. The application
paragraph of the jury charge authorized the jury to convict Flores on this charge in
the disjunctive, if he either “with criminal negligence . . . cause[d] the death of [the
victim] by striking [the victim]; or . . . with criminal negligence cause[d] blunt force
injuries to [the victim] in a manner and means to the grand jury unknown.” Id. at
401–02. Thus, like in our case, the “causes the death of” element was omitted from
the second alleged theory in the application paragraph. Id.The Waco court held that Flores was egregiously harmed by this error because
it deprived him of his rights to due process and trial by jury, which rights entitle
criminal defendants to have a jury determine guilt as to every element of the charged
crime beyond a reasonable doubt. Id. at 403. While we find Flores persuasive here, we
cannot rely solely on its reasoning because it did not perform a full analysis of the
Almanza factors in relation to the record. See Vasquez v. State, 389 S.W.3d 361, 370
(Tex. Crim. App. 2012) (explaining that courts must undertake a “full Almanza
analysis” in determining egregious harm).
11
A. ALMANZA FACTORS WEIGH IN FAVOR OF EGREGIOUS HARM
As discussed above, an appeals court determines egregious harm stemming
from jury-charge error chiefly by considering the factors outlined in Almanza.
686 S.W.2d at 171. This task, however, has been no easy feat for Texas courts,
including the Court of Criminal Appeals. Compare id., with Hutch v. State, 922 S.W.2d
166, 172–75 (Tex. Crim. App. 1996), and Gelinas v. State, 398 S.W.3d 703, 706–23 (Tex.
Crim. App. 2013). One dissenting opinion from that court went so far as to
characterize Almanza as a “tragedy” and “conundrum” that has created conflicting
and uneven decisions “because the factors used to distinguish between harm and
egregious harm are difficult to decipher.” Gelinas, 398 S.W.3d 703, 713 (Meyers, J.,
dissenting). We can attest to this difficulty, particularly given the weighty and tragic
circumstances raised by the facts of this case. But, in the end, our task is clear: we
must determine from the entire record—in light of the Almanza factors—whether the
jury-charge error here affected the very basis of the case, deprived Alkayyali of a
valuable right, or vitally affected one of his defensive theories. See Villareal,
453 S.W.3d at 433; Almanza, 686 S.W.2d at 172; see also Vasquez, 389 S.W.3d at 370.
Guided by constitutional principles and considering the record before us, we
hold that Alkayyali was egregiously harmed.
1. Entirety of the Charge
The jury charge contained the following relevant information:
12
• It instructed the jury that it had “no right to disregard or give special attention to
any one instruction” and that its duty was to “apply the law as” the trial court
explained it;
• The abstract paragraph correctly included the “causes the death of” element for
both theories of murder under Section 19.02(b)(1) and (2);
• The application paragraph omitted the “causes the death of” element for the
second theory and instructed the jury that it must find Alkayyali guilty of murder if
he intentionally, with intent to cause serious bodily injury, impeded her breathing
or blood circulation;
• The application paragraph also included the elements for the offenses of
manslaughter and criminally negligent homicide, both of which correctly included
the “causes the death of” element.
Through the jury charge, the trial court must instruct the jury “under what
circumstances they should convict, or under what circumstances they should acquit.”
Gray v. State, 152 S.W.3d 125, 128–29 (Tex. Crim. App. 2004) (internal quotations
omitted). “The application paragraph is that portion of the jury charge that applies
the pertinent law, abstract definitions, and general legal principles to the particular
facts and the indictment allegations.” Vasquez, 389 S.W.3d at 366. Accordingly, the
application paragraph has been described as the “heart and soul” of the jury charge
because it is the portion of the charge that authorizes the jury to act. Id. at 367; Hutch,
922 S.W.2d at 172 (holding that “[i]t is not sufficient for the jury to receive an abstract
instruction of the law” and holding in favor of egregious harm when the application
paragraph incorrectly stated the law); see Gelinas, 398 S.W.3d at 707 (declining to
follow Hutch in placing “great weight” on charge error simply because it was located
13
in application paragraph but ultimately holding that such error did weigh in favor of
egregious harm).
Though the abstract paragraph correctly informed the jury of every element of
murder, the application paragraph authorized them to convict Alkayyali of murder
without having to find beyond a reasonable doubt that he caused Moussa’s death. In
fact, taken as a whole, the charge instructed the jury members that it was their duty to
do so. We are not persuaded that the inclusion of the “causes the death of” language
in the abstract paragraph and the instructions for manslaughter and criminally
negligent homicide sufficiently negated this harm. Rather, these aspects of the charge
further highlight the confusion created on the face of the charge about what elements
must be met for a person to be convicted of murder under Section 19.02(b)(2).
We hold that this factor weighs in favor of egregious harm.
2. State of the Evidence, Including Contested Issues and
Weight of Probative Evidence
We concede that the State presented ample probative evidence to support
Alkayyali’s conviction and discuss this more fully in our evidentiary-sufficiency
analysis below. However, the issue of Moussa’s cause of death—and, relatedly, Dr.
Krouse’s history of faulty autopsies—was hotly contested and constituted Alkayyali’s
chief defense. If even a single juror was persuaded that Moussa’s health issues created
enough reasonable doubt as to the cause of her death, then Alkayyali could not have
been convicted of murder.
14
Significantly, the charge error here related directly to this contested issue. By
omitting the causation element from the second theory, the charge effectively erased
Alkayyali’s main defense from the jury’s consideration. On this record and following
this charge, a juror could have believed that Alkayyali assaulted Moussa but, due to
her health issues, not been convinced beyond a reasonable doubt that the assault
caused her death—and that juror could still have convicted him of murder. In other
words, this charge functionally relieved the State of its burden to prove beyond a
reasonable doubt that Alkayyali caused Moussa’s death under the second theory. For
these reasons, we hold that this factor weighs in favor of egregious harm.
3. Arguments of Counsel
Both the State and Alkayyali discussed the elements of murder at voir dire and
in closing arguments, to include numerous mentions of the “causes the death of”
element. We hold that this factor does not weigh in favor of egregious harm.
4. Other Relevant Record Information
Before the State’s case-in-chief and in the presence of the jury, the indictment
against Alkayyali was read verbatim, and that indictment omitted the “causes the
death of” element from the second alleged theory. Additionally, during punishment
deliberations, the jury sent a note to the trial court asking how to proceed if they were
not unanimous as to the sudden-passion special issue. The State argues that this
weighs against egregious harm because it shows that “the jury had agreed that
Alkayyali caused Moussa’s death, but did not agree about whether he did so under
15
sudden passion for the purposes of assessing punishment.” Alkayyali, on the other
hand, argues that the note weighs in favor of egregious harm because it shows that “at
least some jurors did not believe this was an intentional or knowing murder, but voted
to convict” on the second theory.
We do not believe the jury note preponderates either for or against egregious
harm in any significant way. Sudden passion does not relate directly to the particular
cause of death, but rather it relates to premeditation and whether the anger or fear
experienced by the defendant rendered him incapable of cool reflection. See Gonzales
v. State, 717 S.W.2d 355, 357–58 (Tex. Crim. App. 1986). Indeed, the jury could have
found sudden passion under either theory alleged here. Thus, any inferences drawn
from a punishment-phase jury note regarding the specific theory utilized by individual
jurors at the guilt/innocent phase would be so tenuous as to render them almost
meaningless.
However, because the jury was presented with the erroneous language from the
indictment that omitted the “causes the death of” element from the second theory, we
hold that this factor weighs slightly in favor of egregious harm.
B. THE CHARGE ERROR DEPRIVED ALKAYYALI OF VALUABLE RIGHTS AND
VITALLY EFFECTED HIS MAIN DEFENSIVE THEORY
Constitutional due process “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.” Francis v. Franklin, 471 U.S. 307, 313, 105 S. Ct. 1965, 1970
16
(1985) (internal quotations omitted). Constitutional due process also “guarantees
criminal defendants ‘a meaningful opportunity to present a complete defense.’” Crane
v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146 (1986) (quoting California v.
Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532 (1984)). These are “bedrock,
axiomatic[,] and elementary” constitutional principles that protect a defendant from—
among other things—jury charge issues that would effectively relieve the State of
meeting its burden on every element of the charged offense. Francis, 471 U.S. at 313,
105 S. Ct. at 1970 (internal quotations omitted); see Flores, 48 S.W.3d at 403. We hold
the State to such a high burden in criminal prosecutions because the stakes—one’s life
and liberty—are so great and because we as a society have made a “fundamental value
determination” that it is “far worse to convict an innocent man than to let a guilty
man go free.” Francis, 471 U.S. at 313, 105 S. Ct. at 1970 (quoting In re Winship,
397 U.S. 358, 372, 90 S. Ct. 1068, 1077 (1970) (Harlan, J., concurring)).
Under the facts of this case, the omission of the “causes the death of” element
from the application paragraph of the jury charge 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 Moussa’s death beyond a reasonable doubt and
(2) undermining his right to present a complete defense that sought to question that
causation. Thus, we hold that this error egregiously harmed Alkayyali and sustain his
second point of error.
17
C. THE EVIDENCE WAS LEGALLY SUFFICIENT
In his fourth and fifth points of error, Alkayyali contends that the evidence was
legally insufficient on the element of intent: whether the State proved beyond a
reasonable doubt that he either intended to kill Moussa or that he intended to cause
her serious bodily harm. Though we have sustained Alkayyali’s charge-error point, we
must still consider his sufficiency point. See Moff v. State, 131 S.W.3d 485, 489–92
(Tex. Crim. App. 2004) (explaining that appellate courts must consider sufficiency
challenges even if reversal is required on other grounds because if the evidence is
insufficient, the court must render a judgment of acquittal, which is greater relief than
reversal and remand). We hold that the evidence was legally sufficient to support the
jury’s verdict.
In our evidentiary-sufficiency review, we view all the evidence in the light most
favorable to the verdict to determine whether any rational factfinder could have found
the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex.
Crim. App. 2017). The standard of review is the same for direct and circumstantial
evidence cases; circumstantial evidence is as probative as direct evidence in
establishing guilt. Carter v. State, 620 S.W.3d 147, 149 (Tex. Crim. App. 2021), cert.
denied, 142 S. Ct. 859 (2022).
“A person acts intentionally, or with intent, with respect to the nature of his
conduct or to a result of his conduct when it is his conscious objective or desire to
18
engage in the conduct or cause the result.” Tex. Penal Code Ann. § 6.03(a). A
factfinder may infer that a person intends the natural consequences of his acts.
Harmel v. State, 597 S.W.3d 943, 954 (Tex. App.—Austin 2020, no pet.) (citing Medina
v. State, 7 S.W.3d 633, 637 (Tex. Crim. App. 1999)). Intent may be inferred from any
facts tending to prove its existence, including the method of committing the crime;
the wounds inflicted on the victim; and the defendant’s acts, words, and conduct. Id.The jury heard ample circumstantial evidence probative of intent:
• Alkayyali’s and Moussa’s marriage was undisputedly strained and she consistently
requested a divorce;
• Immediately preceding Moussa’s death, Alkayyali told Smith that Moussa treated
him like “shit,” that their situation was “bad,” that Moussa had a “black soul,” and
that he hated his life;
• Alkayyali testified that, on the morning of Moussa’s death, he had been sleeping on
the couch and they argued;
• Alkayyali admitted that he pushed Moussa and repeatedly placed his hands on her
mouth;
• Alkayyali testified that, during this struggle, Moussa became unconscious;
• With Moussa unconscious, Alkayyali left the apartment and called Smith to say
that he had hit Moussa and covered her mouth, that she was unconscious, and that
he was going to jail;
• The paramedic noticed bloody sputum and ligature marks on Moussa’s throat,
which led him to believe that she had been strangled;
• The medical examiner ruled Moussa’s death a homicide by asphyxia and testified
that this was supported by her various injuries, the bloody sputum, and petechiae
under her scalp; and
19
• The medical examiner testified that it would take “minutes” to manually strangle
or smother someone to death.
Taken as a whole and viewed in the light most favorable to the verdict, we hold
that this constituted sufficient evidence for a rational juror to conclude that Alkayyali
acted with the requisite intent to convict him of murder. See Harmel, 597 S.W.3d at
954–55 (holding evidence was sufficient to prove intent to murder when the victim’s
injuries indicated that she had been strangled to unconsciousness and that the
defendant left her in that state). We overrule Alkayyali’s fourth and fifth points of
error.
IV. CONCLUSION
Having held that Alkayyali was egregiously and reversibly harmed by
jury-charge error and overruled his points on evidentiary sufficiency, we need not
consider his remaining points of error. See Tex. R. App. P. 47.1. We reverse his
murder conviction and remand to the trial court for further proceedings. See Hutch,
922 S.W.2d at 174 (reversing and remanding upon holding that appellant was
egregiously harmed by jury-charge error).
/s/ Brian Walker
Brian Walker
Justice
Publish
Delivered: April 20, 2023
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