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My AccountChapter 22
- 22.1 Instruction—Assault by Causing Bodily Injury
- 22.2 Instruction—Assault by Threat
- 22.3 Instruction—Assault by Offensive Touching
- 22.4 Instruction—Assault by Impeding Normal Breathing or Circulation
- 22.5 Instruction—Aggravated Assault by Causing Serious Bodily Injury
- 22.6 Instruction—Aggravated Assault by Using or Exhibiting Deadly Weapon in Causing Bodily Injury
- 22.7 Instruction—Presumption of Knowledge—Aggravated Assault on Public Servant Wearing Distinctive Uniform or Badge
- 22.8 General Comments on Injury to a Child, Elderly Individual, or Disabled Individual
- 22.9 Instruction—Serious Bodily Injury to Child by Act
- 22.10 Comments on Injury to a Child and Lesser Included Offenses
- 22.11 Instruction—First-Degree Felony Serious Bodily Injury to Child by Act with Second-Degree Injury as a Lesser Included Offense
- 22.12 Instruction—Serious Bodily Injury to Child by Omission—Duty Created by Assumption of Care, Custody, or Control with “Notice” Defense
- 22.13 Instruction—Serious Bodily Injury to Child by Omission—Duty Created by Parental Relationship
- 22.14 Instruction—Injury to Child—Affirmative Defense of Religious Treatment
- 22.15 Instruction—Injury to Child—Affirmative Defense of Family Violence
- 22.16 Instruction—Injury to Child—Affirmative Defense of Minimal Age Difference
- 22.17 Instruction—Endangering Child by Act
- 22.18 Instruction—Abandoning Child—State Jail Felony
- 22.19 Instruction—Abandoning Child—Third-Degree Felony
- 22.20 Instruction—Abandoning Child—Second-Degree Felony
- 22.21 Instruction—Deadly Conduct—Recklessness
- 22.22 Instruction—Deadly Conduct—Discharge of Firearm in Direction of Individuals
- 22.23 Instruction—Deadly Conduct—Discharge of Firearm in Direction of Habitation, Building, or Vehicle
- 22.24 Instruction—Presumption of Recklessness and Danger—Knowingly Pointing a Firearm at Another Person
- 22.25 Instruction—Deadly Conduct—Presumption of Danger and Recklessness
- 22.26 General Comments on Consent to Defense to Certain Assaultive Crimes
- 22.27 Instruction—Defense of Consent
- 22.28 Instruction—Terroristic Threat
Comment
Consent can be a defense to assault, aggravated assault, or deadly conduct in two situations. In one, the victim must have known that the conduct on which the prosecution is based was a risk of his occupation, recognized medical treatment, or a scientific experiment conducted by recognized methods. Tex. Penal Code § 22.06(a)(2).
The more common situation is that in which the defendant argues that he did not cause or threaten serious bodily injury and thus comes within section 22.06(a)(1). The instruction at CPJC 22.27 addresses only this more frequently encountered scenario.
As one court critically noted, whether consent bars conviction may turn not on the defendant’s “intent” but on whether the conduct actually caused serious bodily injury. Miller v. State, 312 S.W.3d 209, 214 n.2 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).
An instruction on consent is required if the evidence tends to show words or conduct by the complainant that a jury could construe as indicating that the complainant wished to provoke the defendant. This raises an issue about whether the complainant consented to the defendant’s assaultive actions within the meaning of section 22.06.
In one case, for example, the court of criminal appeals noted:
[I]t is undisputed that the complainant used abstract language of consent when she told the appellant, in response to appellant’s threat, to “go ahead,” “come on,” “slap me,” “hit me,” “do it,” or some combination of words to that effect. If she meant what she said to be taken literally, then obviously she would have given her “effective consent” to be struck. Whether she meant it literally was a question of fact for the jury to resolve, of course, and a full and proper jury instruction was required.
Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App. 2008) (absence of instruction on burden of proof regarding consent did not cause egregious harm).
In another case, an eighteen-year-old complainant—
repeatedly shouted expletives at his parents, such as “take your G.D. money and ‘f’ yourself with it.” He then bowed up in close proximity to [his father, the defendant] and, in a threatening tone, taunted him, saying “What the ‘f,’ man. I’m going to—you going to hit me, man? Are you going to hit me? What the ‘f,’ man.”
Miller, 312 S.W.3d at 211. The complainant next kicked and punched the defendant in his side and charged him. The defendant then punched the complainant in the face. On these facts, “the evidence indicates [the complainant] may have genuinely desired to provoke his father to hit him.” Thus refusal of an instruction on consent was error. Miller, 312 S.W.3d at 212.
In a case in which the defendant was charged with assault by biting the complainant, testimony that the bite marks on the complainant were a result of consensual sexual activity required an instruction on consent. Bufkin v. State, 207 S.W.3d 779, 784 (Tex. Crim. App. 2006).