Documents state that the trial court charged the jury in the case the by using the word "or" instead of using the word "and" when looking at the stalking statute.
The appeal document states that a person commits the stalking offense if the person, on more than one occasion, knowingly engages in conduct, including following the other person that: (1) the actor knows or reasonably believes the other person will regard as threatening bodily injury or death for the other person; (2) causes the other person to be placed in fear of bodily injury or death; and (3) would cause a reasonable person to fear bodily injury or death for himself or herself.
The appeal states "in the jury charge, the trial court used the term 'or' rather than 'and' between each subsection, implying that (1), or (2), or (3) could each independently constitute the offense of stalking. Each subsection should, instead, have been charged as necessary elements of the single offense of stalking. This constituted error because, in so charging the jury, the trial court allowed the jury to find Appellant guilty upon finding fewer than all of the elements of the offense of stalking."
The appeal also states that the arguments of the prosecution only compounded the charge error.
The documents read "in its closing argument, the State emphasized the use of 'or' in the charge when it urged the jury that 'you will have all of those different ways to prove something. Remember those are 'ors.'"
The appeal states that Appellate courts have found egregious harm based in part on prosecutor statements that exacerbate the harm done by a jury charge error.
The case will now go back to the 35th District Court for a new trial.
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