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Allen v. State

The 1st Court of Appeals erred in concluding that Kimberly Lynn Allen was deprived of a fair trial because of the omission of a jury instruction regarding the burden of proof with respect to a defense. Court of Criminal Appeals, No. PD-0468-07

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OPINION

It is a defense to the offense of simple assault that the victim effectively consented to the offender’s assaultive conduct or that the offender reasonably believed that the victim consented, at least so long as the conduct did not threaten or inflict serious bodily injury.*fn1 When evidence at trial raises the defense of consent, “the court shall charge [the jury] that a reasonable doubt on the issue requires that the defendant be acquitted.”*fn2 In the instant cause, involving a prosecution for simple assault, the trial court concluded that the evidence raised the defense of consent and instructed the jury on that defense. However, the trial court neglected to instruct the jury, either in the abstract that it must acquit should it have a reasonable doubt with respect to any defense, or specifically in the paragraph applying the law of consent that it must acquit the appellant should it have a reasonable doubt on that issue as raised in her case. In the absence of any objection to this omission, the court of appeals applied the standard for egregiously harmful jury charge error in Almanza v. State,*fn3 found egregious harm, and reversed the appellant’s conviction, remanding the cause for a new trial.*fn4

In its petition for discretionary review, the State concedes that the court of appeals applied the right standard for assessing egregious harm under Almanza. However, the State contends that the court of appeals’s application of that standard conflicted with this Court’s recent application of the standard in Olivas v. State.*fn5 We granted the State’s petition in order to examine this contention.*fn6

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