Texas Stamp


PD-0449-21 09/16/2021

“Did the jury charge in a case that involved autoerotic asphyxiation that led to the death of one of the participants and a conviction of murder for the other participant, and contained an incorrect definition of ‘intentionally,’ which allowed the jury to find the Appellant guilty merely by finding that he intended the action, rather than intending the result, cause harm.”

Campbell murdered the victim while engaging in erotic asphyxiation. Campbell objected to the court’s proposed abstract charge that defined intentionally to include both nature-of-conduct and result-of-conduct. His objection was overruled.  Campbell was convicted.

Campbell argued on appeal that murder is a result-of-conduct offense only. Assuming Campbell’s argument was correct, likely in part based on the State’s confession of error, a majority of the court of appeals held the error was harmless.  In doing so, it rejected Campbell’s argument that the jury could have convicted him if it believed he intended the conduct but not the result.  The majority observed that Campbell could have been convicted under three theories: (1) intentionally causing the death, (2) knowingly causing the death, or (3) intending to cause serious bodily injury, committing an act clearly dangerous to human life and causing the death. While the charge included the nature-of-conduct element for intentional, it did not do so for knowing.  Because of the alternative mental states and manners and means, there is no harm. The court also pointed out that Campbell’s intent to kill could have been inferred from the fact that he possessed videos with manual strangulation and necrophilia.

Chief Justice Gray dissented. Comparing the type of error here to a civil jury-charge error, he believed that the availability of the improper nature-of-conduct element as a basis for conviction is enough to show some actual harm. No juror is going to ask whether they all need to agree on the result-of or nature-of conduct elements.  Here, it took away Campbell’s only viable defense. “[B]ecause the charge allowed a conviction on merely the intent to choke [the victim], [Campbell]’s trial attorney could not argue that, while [Campbell] intended to choke [the victim] to heighten the sexual pleasure, he did not intend to kill her.”

Relying on Chief Justice Gray’s dissent, Campbell asks the Court of Criminal Appeals to reverse his conviction.

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