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On July 26, Dallas’ 5th Court of Appeals tossed out the aggravated assault conviction of a law professor, finding that a jury-charging error denied her the right to a unanimous verdict in her case. Jane Lynn Dolkart, a professor at Southern Methodist University Dedman School of Law, was charged with threatening bodily injury and recklessly causing bodily injury. At trial, the charge instructed the jury that if it found Dolkart had threatened or caused bodily injury, it was to find her guilty of aggravated assault. The jury found Dolkart guilty of aggravated assault and sentenced her to five years of probation and a $1,000 fine for allegedly striking attorney Tom Thomas II with her car while he was riding a bicycle. But because of the way a trial judge charged the jury, the charge ran afoul of Ngo v. Texas, a 2005 Texas Court of Criminal Appeals opinion that held when an indictment alleges two separate offenses arising out of the same Texas Penal Code provision, the jury must agree on which offense the defendant committed. “Even though the State sought only a single aggravated assault conviction, the trial court’s charge allowed the jury to convict appellant without requiring the jury to unanimously agree on whether appellant committed aggravated bodily injury assault or aggravated assault by threat,” wrote Justice Carolyn Wright in an opinion joined by Justices Elizabeth Lang-Miers and Amos Mazzant. The 5th Court reversed and remanded the conviction, saying that aggravated bodily injury assault and aggravated assault by threat are two separate offenses, not a “manner and means of committing a single aggravated assault.” Lori Ordiway, chief of the appellate division at the Dallas County District Attorney’s Office, says she is considering appealing the decision to the CCA. “If this stands we would have to re-evaluate our charging practice,” Ordiway says. Gary Udashen, a partner in Dallas’ Sorrels Udashen & Anton who represents Dolkart, doubts the CCA will accept Dolkart’s case for review, because the court already decided the issue in Ngo. He believes Dolkart’s appellate win will receive a lot of attention in the Texas criminal-law world. “Nobody really knows about it or understands it very well,” Udashen says of the Ngo opinion. But Dolkart’s case will get people to understand what Ngo is all about, he says. Dolkart is on a leave of absence from the law school, says Robert Bobo, a spokesman for SMU.

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