
    Kimberly Lynn ALLEN, Appellant, v. The STATE of Texas, Appellee.
    No. 01-04-00235-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 11, 2007.
    Rehearing Overruled Feb. 24, 2007.
    Discretionary Review Granted Oct. 10, 2007.
    
      Bob Wieoff, Houston, TX, for Appellant.
    Peyton Z. Peebles, III, Assistant District Attorney, Charles A. Rosenthal, Jr., District Attorney-Harris County Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices JENNINGS and HANKS.
   OPINION

GEORGE C. HANKS, JR., Justice.

A jury found appellant, Kimberly Lynn Allen, guilty of assault, and the trial court assessed punishment at 180 days’ confinement, suspended the sentence, and placed appellant on community supervision for one year, with a $500 fine, 80 hours of community service, and various other conditions of community supervision. In three points of error, appellant complains that the evidence is legally and factually insufficient to disprove the defense of consent and the trial court failed to charge the jury that, if the State had failed to persuade the jury beyond a reasonable doubt that the complainant did not consent to the assault, it was required to acquit appellant. We reverse and remand.

Background

Kimberly Ryan and her fiancé went to a Denny’s Restaurant in the early-morning hours of December 14, 2002 after helping a friend move. When she arrived, there were not many people in the restaurant, but she noticed three women sitting at a table. Ryan testified that the women were so loud that her fiancé had to move to sit closer to her so that she could hear him talk. The noise continued, so she turned around and said “do you mind” to the “raucous” and “obnoxious” women. Appellant, who was sitting at the other table, responded, “I’m not going to let some white fucking bitch tell me what I’m going to do. I’m going to kick her fucking ass.” Ryan testified that she was afraid, and the “verbal assault” escalated. She called for emergency assistance because she “felt like [she] was about to get hurt.”

Ryan testified that the Denny’s manager/waitress told the ladies that they were going to have to leave, and appellant responded “you can’t make us leave” at which point a “tug-o-war ensued with a plate.” Appellant told the waitress “you are not going to fucking make us leave. I’m going to kick your fucking ass.” The waitress was doused with the contents of a coffee cup and appeared “shocked, frightened, dismayed.” As appellant was leaving, she walked back to Ryan’s fiancé and said “I’m not going to let a white, motherfucking, faggot tell me what to do. And just because I take it up the ass, doesn’t mean I’m going to take it from that white motherfucker.”

Appellant walked to the front of the restaurant, and Ryan saw someone else walk up to the front as well. Ryan testified that she “didn’t hear the words that were said, but the body language that I saw, the other person kind of reared her hands back and, I don’t know what was said but, [appellant] came around and just ... it wasn’t a full on punch ... she just whacked her in the side of the head” and caused her to bleed above her eyebrow. She explained that it did not look like the other person was preparing to hit appellant, but, instead “it was like, go ahead and hit me.” The woman did not take a swing at or hit appellant. The police arrived within seconds and took appellant away. Ryan testified that appellant was “fighting” with the police and “kicking in the air” and “flailing” as they led her to a patrol car.

Jackie Dubendorf, the complainant, testified that she and two friends arrived at the Denny’s for breakfast around 3:30 a.m. after getting off work. She was talking with her friends when she heard voices “hollering at each other and threatening people” on the other side of the restaurant. She heard them say, “I’m going to fucking kill the waitress.” The complainant saw the three women walk up to the cashier and call him a “fucking faggot.” The complainant felt sorry for the cashier, so she got up and told appellant “that she wasn’t impressing anybody.” Appellant responded, “I sure the fuck ain’t trying to impress you. I ought to walk over there and slap the fuck out of you.” The complainant then “stood back with [her] arms out to [her] side and said, then, slap me.” Appellant hit her over the left eyebrow, which caused the complainant’s pierced eyebrow ring to rip out and bleed. The complainant ducked down, and appellant swung at her again, and the complainant swung back making contact with appellant. The police arrived and restrained appellant. Appellant screamed, “Get the fuck off of me. Why aren’t you jumping on that white bitch.” The complainant watched appellant “wrestling and struggling with the police.”

Appellant was arrested and charged with misdemeanor assault. The jury was instructed on the defenses of self-defense and consent.

Jury Charge Error

In point of error three, appellant argues that the trial court erred “when it failed to charge the jury that, if they had a reasonable doubt as to whether the defense of consent had been [dis]proven, they were required to acquit the appellant.”

In analyzing a jury charge issue, our first duty is to decide whether error exists. Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App.2003). If we find error, we then analyze that error for harm. Id. The degree of harm necessary for reversal depends on whether the appellant preserved the error by objection. Id. When the defendant fails to object or states that he has no objection to the charge, we will not reverse for jury charge error unless the record shows “egregious harm” to the defendant. Bluitt v. State, 137 S.W.3d 51, 53 (Tex.Crim.App.2004); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985). Thus, we review alleged charge error by considering (1) whether error existed in the charge; and (2) whether sufficient harm resulted from the error to compel reversal. See Posey v. State, 966 S.W.2d 57, 60 & n. 5 (Tex.Crim.App.1998). When evidence from any source raises a defensive issue and the defendant properly requests a jury charge on that issue, the trial court must submit the issue to the jury. Mendoza v. State, 88 S.W.3d 236, 239 (Tex.Crim.App.2002).

Error

The jury instruction submitted to the jury stated:

You are further instructed that it is a defense to a prosecution for assault if the victim of the assault effectively consents to the conduct of the actor, or the actor reasonably believed that the victim consented to the actor’s conduct.
Therefore, if you find from the evidence, beyond a reasonable doubt, that [appellant] struck [the complainant] with her hand; but, you further find from the evidence that [the complainant] effectively consented to the strike by her conduct, you will acquit [appellant] and say by your verdict, “not guilty.”

(Emphasis added.) Appellant contends that the submitted instruction “failed to contain any language regarding the burden of proof on the defensive issue” contrary to section 2.03(d) of the Penal Code, which provides that, “if the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.” Tex. Pen.Code Ann. § 2.03(d) (Vernon Supp.2006). On appeal, the State concedes that “the specific instruction paragraph above failed to comply with Section 2.03(d), [however,] the area of the charge immediately surrounding it complied with the necessary requirements.” We disagree. The charge that the trial court submitted did not instruct the jury that, if it had a reasonable doubt as to whether the complainant consented to the assault, it had to acquit the appellant. See Russell v. State, 834 S.W.2d 79, 82 (Tex.App.-Dallas 1992, pet. ref'd) (although there was sufficient evidence to raise the issue of self-defense, neither the arguments of counsel nor the court’s charge instructed the jury that it must acquit Russell if it had a reasonable doubt on the issue of self-defense).

Accordingly, we hold that the trial court erred in submitting an instruction paragraph that faded to comply with section 2.03(d). Having found error in the court’s charge, we must determine whether sufficient harm resulted from the error to require reversal.

Preservation

In order to preserve error relating to the jury charge there must either be an objection or a requested charge. Vasquez v. State, 919 S.W.2d 433, 435 (Tex. Crim.App.1996). The Court of Criminal Appeals has interpreted articles 36.14 and 36.15 as dealing with those two distinct situations: an objection to the charge and a requested special instruction, respectively. Frank v. State, 688 S.W.2d 863, 865 (Tex.Crim.App.1985). Under article 36.14, the defendant is required to object and obtain an adverse ruling to preserve any error. Vasquez, 919 S.W.2d at 435. However, under article 36.15, if the defendant requests a special charge, no objection is required to preserve error. Id. Article 36.15 allows that both sides shall have a reasonable time to present written instructions and ask that they be given to the jury. Tex.Code Crim. Proc. Ann. art. 36.15 (Vernon 2006). Here, appellant notes that she “filed” her proposed instruction prior to the trial court’s charge being filed later that same day. However, the record does not demonstrate that she actually presented her proposed instruction to the judge and asked that it be given to the jury. Moreover, the record does not show that the trial court had an opportunity to “refuse” the proposed instruction. Accordingly, appellant must show that the charge error resulted in “egregious harm” to her. See Bluitt, 137 S.W.3d at 53.

Harm

Jury charge errors to which there is no objection are subject to review under the standards established by Almanza, 686 S.W.2d at 160. Therefore, error, if any, does not require reversal unless it was so egregious and created such harm that appellant was denied a fair trial. Id. at 171. The actual degree of harm must be assayed in light of the entire jury charge; the state of the evidence, including the contested issues and the weight of probative evidence; the argument of counsel; and any other relevant information revealed by the record of the trial as a whole. Id. Errors resulting in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defense theory. Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996). Considering the Almanza factors, we conclude that the error resulted in egregious harm because it effectively shifted the burden of proof on the defense theory.

(1) Entire Jury Charge

The State argues that “the area of the charge immediately surrounding [the consent charge] complied with the necessary requirements.” Here, the paragraph before the consent paragraph instructed the jury on self-defense. The self-defense application paragraph instructed the jury to find appellant not guilty if it had a reasonable doubt on the issue. The charge then instructed the jury on the consent defense at issue and excluded the reasonable doubt language. The State contends that, read together with the general instruction that, “in the event you have a reasonable doubt as to the defendant’s guilt after considering all the evidence before you, and these instructions, you will acquit the defendant and say by your verdict, ‘Not guilty,’ ” these “inherently connected paragraphs sufficiently instructed the jury regarding the State’s burden of proof and that any reasonable doubt on a material issue mandated her acquittal.” We disagree. A reasonable juror comparing the instructions on two defenses, only one of which instructed that the State had the burden to overcome any reasonable doubt regarding defense, would likely conclude that there were different burdens on the two defenses. In fact, the error in the charge effectively shifted the burden to appellant to prove the defense that the complainant consented to the assault.

(2) State of the Evidence and Contested Issues

It is undisputed that appellant slapped the complainant. Appellant contends that the statement made by the complainant— “then slap me” — and the testimony of several 'witnesses who testified that the complainant urged “go ahead,” “come on,” “slap me,” and “hit me” imply that the complainant consented to the assault. The evidence reveals that appellant threatened the complainant before she told appellant to slap her. While both self-defense and consent were submitted to the jury, consent was the issue much more contested. The evidence also showed that appellant’s words and actions were combative and provocative throughout the incident.

(3) Counsel’s Argument

In appellant’s trial counsel’s closing argument, he commented on the burden of proof and the inconsistencies in the charge as follows:

I look forward to hearing [in the State’s argument] why the law of consent is not going to apply in this case. She gets to speak last. It’s her burden of proof and it’s an onerous burden. It’s all the way beyond a reasonable doubt, if you will recall. She’s got to prove it and you must be more solidly convinced than you would be if you were across the street trying to take someone’s child away from them [in family court]. Its [sic] not just clear and convincing evidence. It’s beyond all reasonable doubt. It says it two or three different ways in this charge. It says, if you do not believe beyond a reasonable doubt. Then, it says it another way. It says, if you have a doubt. And, not only does she have to prove that there was a striking, of course, no one is arguing about that, but the defenses have to be disproved beyond a reasonable doubt.

The State confused matters in its closing argument when it stated “ladies and gentlemen, it is up to you to decide if it’s reasonable to believe that [the complainant] walked up there wanting to get hit. Is that reasonable? That is what consent is all about. That’s what the law says.” The defense objected and said, “That’s not what the law says” to which the trial court responded, “You will have, in the court’s charge, what the law says.” As we have held, the court’s charge did not accurately reflect “what the law says.” Appellant’s counsel argued the correct law without drawing an objection and objected to the prosecutor’s argument that was completely at odds with the jury charge. However, the jury was put in the position of having to decide whether to follow the incorrect charge, as the trial court instructed it to do, or follow the correct argument of appellant’s counsel.

(4) Whole Record

Finally, while deliberating, the jury certified that it disagreed about the statements of a witness, and it asked for a part of the transcript to be read back to it. Specifically, the jury wanted to hear the testimony of one of the witnesses to the altercation concerning “remarks when [the complainant] approached [appellant] before and during the assault.” This question further illustrates that the central issue was whether the complainant consented to the assault.

The error in this case did occur in the jury instruction concerning the most contested issue in the case. The State’s argument concerning consent was clearly contrary to both the correct charge and the incorrect charge given. It further effectively shifted the burden of proof on consent, especially in light of the self-defense application paragraph.

Upon review of the entire jury charge; the state of the evidence, including the contested issues and the weight of probative evidence; the argument of counsel; and any other relevant information revealed by the record of the trial as a whole, we hold the error was so egregious and that it created such harm that appellant was denied a fair trial. See Almanza, 686 S.W.2d at 171. The contradictory language in the charge created confusion by effectively shifting the burden on the most contested defensive theory.

We sustain point of error three.

Sufficiency

In points of error one and two, appellant argues that the evidence was legally and factually insufficient to disprove the defense of consent.

Standard of Review

In determining the legal sufficiency of the evidence in regard to a fact finder’s rejection of a defensive issue, we review the evidence in a light most favorable to the prosecution to determine whether any rational fact finder that found the essential elements of the offense beyond a reasonable doubt would have found against appellant on the defensive issue beyond a reasonable doubt. Tex. Pen. Code Ann. § 2.03(d); Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App.1991). Although our analysis considers all evidence presented at trial, we may not re-weigh the evidence or substitute our judgment for that of the fact finder. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000). This standard of review is the same for both direct and circumstantial evidence cases. Fitts v. State, 982 S.W.2d 175, 185 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd). If there is evidence that establishes guilt beyond a reasonable doubt and the jury believes the evidence, the judgment must be affirmed. Id.

Defense of Consent

Appellant asks us to consider (1) whether a rational trier of fact could have found, beyond a reasonable doubt, that the complainant did not consent to appellant’s striking her and alternatively (2) whether the evidence, when viewed in its entirety in a neutral light, is too weak to support the jury’s implied finding against the defense of consent.

Assault is defined as intentionally or knowingly causing bodily injury to another. Tex. Pen.Code Ann. § 22.01(a) (Vernon Supp.2006). Consent as a defense to prosecution requires the victim’s effective consent, or, if the conduct did not threaten or result in serious bodily injury, the actor’s reasonable belief that the victim consented to the conduct. Id. § 22.06(1) (Vernon Supp.2006). The defense of consent requires effective consent which is defined by the Texas Penal Code as consent by a person legally authorized to act. Id. § 1.07(a)(19)(A) (Vernon Supp. 2006). Consent is not effective when induced by force, threat, or fraud. Id. The issue of consent as a defense is an issue of fact to be determined by a jury. See Saxton, 804 S.W.2d at 913 (The “issue of self-defense is an issue of fact to be determined by the jury.”).

If the issue of the existence of a defense is submitted to the jury, the trial court shall charge that, if there is a reasonable doubt on the issue, the defendant should be acquitted. Tex Pen.Code Ann. § 2.03(d). After the issue has been properly raised by the evidence, the State is not required to disprove a defense beyond a reasonable doubt. Saxton, 804 S.W.2d at 913. It is the defendant’s burden to produce evidence raising the defense, after which the burden shifts to the State. Id. The burden placed on the State is not one of producing evidence to refute the defensive claim, but rather to prove its assault case beyond a reasonable doubt. Id.

Here, it is undisputed that appellant slapped the complainant. Appellant contends that the statement made by the complainant — “then slap me” — and the testimony of several witnesses who testified that the complainant urged “go ahead,” “come on,” “slap me,” and “hit me” conclusively prove that the complainant consented to the assault. The State argues that statements such as “hit me” are not forms of consent when the alleged consent occurred after the assaultive conduct began. The evidence reveals that appellant threatened the complainant before she told appellant to slap her. We agree that this evidence supports an implied finding by the jury that any consent given by the complainant was not effective.

Viewing the evidence in the light most favorable to the jury’s verdict, we conclude that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Accordingly, we hold that the evidence is legally sufficient to support appellant’s conviction.

We overrule point of error one.

Conclusion

We reverse the trial court s judgment and remand. 
      
      . However, the State does not have to produce evidence disproving or refuting a defensive claim, even if all evidence supporting the defense was uncontradicted and consistent. Saxton v. State, 804 S.W.2d 910, 912 (Tex.Crim.App.1991). The Court of Criminal Appeals held that Penal Code section 2.03(d) “addresses the mechanics of the jury charge vis-a-vis the State's burden of proof when a defensive issue has been raised by the evidence, rather than the sufficiency of the evidence.” Id. at 913.
     
      
      . "Happy’s remarks when Jackie approached Kimberly before and during the assault.”
     
      
      . Having already held that there was reversible error warranting a remand, we need not address appellant’s second point of error regarding factual sufficiency.
     