Price, Eric Ray

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0383-14

ERIC RAY PRICE, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE TENTH COURT OF APPEALS HAMILTON COUNTY

M EYERS, J., filed a dissenting opinion.

DISSENTING OPINION

I do not agree with majority’s decision that assault by occlusion is a result-of-conduct

offense only. The majority’s conclusion that the strangulation is not the gravamen of this

offense is incorrect. The strangulation is the only thing that changed this offense from a

misdemeanor to a felony, which clearly demonstrates that the gravamen of assault by

occlusion is the conduct of strangling. The requirement that the defendant have strangled the

victim “by applying pressure to the person’s throat or neck or by blocking the person’s nose Price dissent - Page 2

or mouth” describes the nature of the conduct, and therefore, a culpable mental state must

apply to it. McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989).

Error in the jury charge causes egregious harm when it affects the basis of the case or

deprives the defendant of a valuable right. Almanza v. State, 686 S.W.2d 157, 172 (Tex.

Crim. App. 1985). Failure to tailor the charge to include a culpable mental state for the nature

of the conduct likely caused egregious harm to Appellant. Because I would grant Appellant

relief and reverse the judgment of the court of appeals, I respectfully dissent.

Meyers, J.

Filed: April 15, 2015

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