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Click here for the full text of this decision FACTS:Appellant was charged by information with family-violence assault. The information alleged that the assault occurred “on or about Aug. 9, 2003,” and specified in separate paragraphs two different factual methods of committing the assault. Paragraph A stated: “[The defendant did] intentionally, knowingly, or recklessly cause bodily injury to Shelby Hooper by striking her with the defendant’s hand.” Paragraph B stated: “[The defendant did] intentionally, knowingly, or recklessly cause bodily injury to Shelby Hooper by biting her.” At trial, the state introduced evidence that the police were dispatched to a hotel room that had recently been the scene of an altercation between appellant and Hooper. Hysterical and crying, Hooper told the officers that appellant had struck her with his fists and bitten her. Consistent with Hooper’s statements, officers observed a cut on her lip and bite marks on her back and buttocks. After admitting, during questioning, that he had hit Hooper in the head with a closed fist, appellant was arrested. Hooper testified for the defense. She stated that she had provided the police with a misleading picture of what really occurred on the evening of the alleged assault. With regard to the allegation that appellant hit her with his hand, she claimed that she was the aggressor that evening and that appellant was simply defending himself. With regard to the bite allegation, she denied that she was bitten on Aug. 9 and claimed that the bite marks on her body were actually the result of “love bites” that were a part of consensual sexual activity occurring on the prior evening (Aug. 8). At the jury charge conference, appellant requested consent instructions in connection with both the alleged striking and the alleged biting. The trial court denied these requests. The court did, however, submit an instruction on self-defense. The jury found appellant guilty. The court of appeals reversed, holding that Hooper’s testimony that the bite was consensual was sufficient to raise the defense of consent as to the biting allegation, and consequently, appellant was entitled to the consent instruction as to that allegation. The appellate court subsequently decided it could not find the error harmless under the standard applicable to nonconstitutional error because it could not determine whether the jury convicted on the basis of biting or striking (or both) and because “whether Hooper was assaulted was a determination for the jury to make.” HOLDING:Affirmed. The Court of Criminal Appeals (CCA) stated that it would not apply the usual rule of appellate deference to trial court rulings, because it was reviewing a trial court’s decision to deny a requested defensive instruction. In such circumstances, the CCA stated, it would view the evidence in the light most favorable to the defendant’s requested submission. The consent instruction, the CCA stated, is what would have given the jury a vehicle to effectuate any belief in the defendant’s claim that the biting incident, and the bite marks that resulted, were a product of consensual conduct that was not against the law. It is true, the CCA stated, that the state also prosecuted appellant for striking Hooper with his hand. But the jury charge submitted the biting and striking allegations in the disjunctive, the CCA stated, so the defendant’s proposed instruction was needed to rebut a theory of liability upon which the jury could have decided to solely rely. The CCA concluded that the court of appeals was correct in holding that the trial court erred in denying the defendant’s requested instruction. OPINION:Keller, P.J., delivered the opinion of the court in which Meyers, Price, Holcomb, and Cochran, J.J., joined. Womack and Keasler, J.J., did not participate. CONCURRENCE:Johnson, J., concurred in the result without an opinion. DISSENT:Hervey, J., dissented without an opinion.

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