Price, Eric Ray

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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