Affirmed and Memorandum Opinion filed May 21, 2019.




                                            In The

                        Fourteenth Court of Appeals

                                   NO. 14-18-00074-CR

                        ZETH AURELIO GARCIA, Appellant
                                               V.
                          THE STATE OF TEXAS, Appellee

                      On Appeal from the County Court at Law
                             Caldwell County, Texas
                           Trial Court Cause No. 45407

                     MEMORANDUM OPINION

       Appellant Zeth Aurelio Garcia appeals his conviction for assault, contending
the trial court committed reversible error by denying his request for a jury instruction
on the defense of consent.1 We affirm.


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          This appeal was transferred to the Fourteenth Court of Appeals from the Third Court of
Appeals. In cases transferred by the Supreme Court of Texas from one court of appeals to another,
the transferee court must decide the case in accordance with the precedent of the transferor court
under the principles of stare decisis if the transferee court’s decision otherwise would have been
                                            BACKGROUND

        Appellant was charged with the misdemeanor offense of assault, and a jury
trial was held on November 7 and 8, 2016.

        At trial, Complainant William Welch testified he was working at his brother’s
mechanic shop when Appellant, Appellant’s father, Aurelio Barea Garcia
(“Aurelio”), and Appellant’s brother, Aurelio Martinez Garcia, Jr. (“Junior”), came
to the shop. Complainant testified Aurelio started arguing with him over a $700 bill.
The three men demanded Complainant “give them their money back” and refused to
leave unless Complainant paid them. Complainant told the men he would not refund
them any money and asked them to leave. Complainant testified Appellant then
lunged toward him and started hitting him in the head and face. Complainant stated
he never “flinch[ed] towards,” “jump[ed] at,” or made “any kind of motion towards”
Appellant. According to Complainant, he only threw his hands up to protect his
head. After Appellant punched Complainant numerous times, the three men left the
shop.

        The testimony of Aurelio, Junior, and Appellant at trial contradicted
Complainant’s account of events. Aurelio testified he and Complainant started
cussing at each other when Complainant refused to give him any money back.
Aurelio testified Appellant then told Complainant, “You’re a bitch.” In response,
Complainant “flinched and put his fists forward and jumped at” Appellant as if he
was going to hit Appellant. Appellant hit Complainant first and the two exchanged
several punches. After the fight, the three men left. According to Aurelio, Appellant
did not assault Complainant but “defended himself,” and if Complainant “didn’t
lunge forward like — acting like he was going to hit somebody, nothing would have


inconsistent with the precedent of the transferor court. See Tex. R. App. P. 41.3.

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happened.” Aurelio also testified he “guess[ed]” Complainant “wanted to fight
when he picked up his fists and — and lunged at [Appellant].”

        Junior stated Aurelio and Complainant were in a heated argument when
Appellant got involved by telling Complainant, “You’re a bitch.” Junior testified
Complainant got mad at Appellant and jumped aggressively at Appellant “like if
you’re trying — like if you’re throwing a punch or you’re trying to act like you’re
throwing a punch to make somebody flinch or move out of the way, or something.”
Appellant then hit Complainant first and the two men exchanged several punches.

        Appellant confirmed he got involved in the argument between Aurelio and
Complainant and called Complainant a bitch. Appellant testified Complainant asked
in response, “I’m a bitch?” and then came “towards me with his hands up, and he
took a jolting move at me as if he was going to hit me.” Appellant testified he “just
defended” himself and “didn’t want to get hit.” Appellant also stated, “I hit him
first, like I said. I don’t think he even tried to swing. He just came up — at me with
his hands up and I felt that as a threat and I swung.” According to Appellant, the
two men exchanged several punches before Appellant, Aurelio, and Junior left the
shop.

        A video recording from the body camera the police officer was wearing when
he went to Aurelio’s house to investigate the assault shortly after it happened was
played for the jury. The jury could hear Aurelio telling the police officer that (1)
Complainant “ripped us off”; (2) Aurelio and Complainant argued and Complainant
started cussing; (3) Complainant and Appellant “got close to each other”; (4)
Complainant “flinched, he was going to hit [Appellant] and [Appellant] hit him, and
that was it, and then we left”; (5) Appellant and Complainant hit each other; and (6)
Appellant acted in self-defense. The jury could also hear Appellant later arriving at
Aurelio’s house and telling the investigating police officer that (1) Complainant “got

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into [Appellant’s] face,” flinched at Appellant, and Appellant hit Complainant; and
(2) Complainant “jumped at me, he initiated it.”

      The jury found Appellant guilty of assault.           The trial court assessed
Appellant’s punishment at 365 days’ confinement in Caldwell County Jail probated
for 18 months and a fine of $800. Appellant filed a timely notice of appeal.

                                      ANALYSIS

      Appellant complains on appeal that the trial court erroneously denied his
request for a jury instruction on the defense of consent.

      The victim’s effective consent or the actor’s reasonable belief the victim
consented to the actor’s conduct is a defense to assault if the conduct did not threaten
or inflict serious bodily injury. Tex. Penal Code Ann. § 22.06(a)(1) (Vernon 2018).
An accused is entitled to an instruction on any defense raised by the evidence,
whether that evidence is weak or strong, unimpeached or contradicted, and
regardless of what the trial court thinks about the credibility of the evidence. Allen
v. State, 253 S.W.3d 260, 267 (Tex. Crim. App. 2008); Granger v. State, 3 S.W.3d
36, 38 (Tex. Crim. App. 1999). This rule was designed to ensure that the jury, not
the judge, decides the credibility of the evidence. Granger, 3 S.W.3d at 38.

      The evidence supporting a consent defense may be presented by the State or
defense counsel. See id. at 38 n.2; Woodfox v. State, 742 S.W.2d 408, 409 (Tex.
Crim. App. 1987). When considering whether an instruction was warranted, we are
concerned only with whether the evidence supports the defense of consent, not
whether the evidence is believable. Miller v. State, 312 S.W.3d 209, 212 (Tex.
App.—Houston [14th Dist.] 2010, pet. ref’d); see Dyson v. State, 672 S.W.2d 460,
463 (Tex. Crim. App. 1984). If the evidence viewed in a light favorable to the
defendant supports the defense of consent, then an instruction is required. Miller,


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312 S.W.3d at 212; see Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006);
Granger, 3 S.W.3d at 38.

      Discussing the Court of Criminal Appeals opinion in Allen v. State, Appellant
contends “Allen dictates that evidence at trial can show that consent can be formed
in one quick moment or in a seemingly unconventional way.” See Allen, 253 S.W.3d
at 268. Relying heavily on Allen, Appellant argues he was entitled to an instruction
on the defense of consent because (1) he, Aurelio, and Junior testified Complainant’s
“actions were consistent with wanting to engage in a fight with Appellant”; (2)
Aurelio testified Complainant wanted to instigate a fight; and (3) Junior
“characterized the altercation as a fight.”

      We disagree with Appellant’s argument and interpretation of the evidence.
We begin by noting Appellant’s reliance on Allen is misplaced. The facts in Allen
were significantly distinguishable from the facts in this case. There, evidence
showed that the complainant “in a ‘challenging’ or ‘demanding’ tone” said to the
defendant: “‘if you want to hit me, hit me,’ ‘well then, come on, hit me,’ ‘well, slap
me, then,’ ‘do it, do it.’” Id. at 262-63. The defendant also testified the complainant
“got real flamboyant like, well, go ahead. Do it. Do it. At this time, [the
complainant]’s so close, [complainant]’s like spitting in my face.” Id. at 262. The
court stated “it is undisputed that the complainant used abstract language of consent
when she told the [defendant], in response to [defendant]’s threat, to ‘go ahead,’
‘come on,’ ‘slap me,’ ‘hit me,’ ‘do it,’ or some combination of words to that effect.”
Id. at 267. No similar words were uttered here.

      There is no evidence in the record to support a finding of express consent by
Complainant. Neither Appellant nor any other witness testified that the assault was
expressly assented to by Complainant. There also is nothing in the record to suggest
Complainant implicitly consented or that Appellant reasonably believed

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Complainant consented to the assault. Even if we take Appellant’s facts as true,
Complainant’s actions rise to provocation at best and entitle Appellant to a defensive
instruction on self-defense, which he received. Appellant cites no authority, nor
have we found any, to suggest that offensive conduct by a complainant equates to
consent to an assault.

      We conclude that the issue of consent was not raised by the evidence in this
case. See Garza-Ramirez v. State, Nos. 04-15-00420-CR & 04-15-00421-CR, 2016
WL 1128277, at *3-4 (Tex. App.—San Antonio Mar. 23, 2016, no pet.) (mem. op.,
not designated for publication) (holding complainant’s testimony that she hit
defendant and continued to hit him while they were pushing each other was no
evidence of consent entitling defendant to a consent instruction); Agbor v. State, No.
02-12-00401-CR, 2013 WL 1830679, at *4 (Tex. App.—Fort Worth May 2, 2013,
no pet.) (mem. op., not designated for publication) (holding evidence that
complainant and defendant immediately started arguing and complainant pushed
defendant’s finger out of the way and hit defendant first supported self-defense
instruction but not a consent instruction); Skipper v. State, No. 14-00-00484-CR,
2001 WL 893291, at *2 (Tex. App.—Houston [14th Dist.] Aug. 9, 2001, pet. ref’d)
(not designated for publication) (holding offensive or provocative conduct by
complainant, including yelling, pushing, and hitting defendant with food, did not
equate to consent to an assault); Carlson v. State, No. B14-92-00173-CR, 1994 WL
64940, at *1 (Tex. App.—Houston [14th Dist.] Mar. 3, 1994, no pet.) (not designated
for publication) (holding complainant throwing water on defendant and taking first
swing supported self-defense instruction but not a consent instruction); cf. Amaro v.
State, 287 S.W.3d 825, 831-32 (Tex. App.—Waco 2009, pet. ref’d) (determining
that police officer did not consent to assault merely because he knew he was in
occupation in which he knew he was likely to be assaulted).


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      Appellant was not entitled to an instruction on the defense of consent. The
trial court did not err in denying Appellant’s requested consent instruction, and we
overrule Appellant’s issue.

                                   CONCLUSION

      We affirm the judgment of the trial court.




                                      /s/       Meagan Hassan
                                                Justice


Panel consists of Justices Christopher, Jewell, and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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