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Click here for the full text of this decision FACTS:Kimberly Ryan and her fiance went to a Denny’s Restaurant in the early-morning hours of Dec. 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 fiance 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 women. Kimberly Lynn Allen, who was sitting at the other table, responded, “I’m not going to let some white f � � � b � � tell me what I’m going to do. I’m going to kick her f � � � ass.” Ryan testified that she was afraid that Allen would hurt her and called for help. Ryan testified that the Denny’s manager told the ladies that they must leave, and Allen responded, “You can’t make us leave,” at which point a “tug-o-war ensued with a plate.” Allen told the waitress “you are not going to f � � � make us leave. I’m going to kick your f � � � ass.” The waitress was doused with the contents of a coffee cup and appeared shocked, frightened and dismayed. As Allen was leaving, she walked back to Ryan’s fiance and said “I’m not going to let a white, m � � � � � � , faggot tell me what to do.” Jackie Dubendorf, the alleged assault victim, 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 f � � � kill the waitress.” Dubendorf saw the three women walk up to the cashier and call him a “f � � � faggot.” Dubendorf got up and told Allen “that she wasn’t impressing anybody.” Allen responded, “I sure the f � – ain’t trying to impress you. I ought to walk over there and slap the f � – out of you.” Dubendorf then “stood back with [her] arms out to [her] side and said, then, slap me.” Allen hit her over the left eyebrow, which caused the complainant’s pierced eyebrow ring to rip out and bleed. Dubendorf ducked down, and Allen swung at her again, and the Dubendorf swung back, making contact with Allen. The police arrived and restrained Allen. Allen screamed, “Get the f � – off of me. Why aren’t you jumping on that white b � � ?” Dubendorf watched Allen wrestling and struggling with the police. A jury found Allen guilty of assault. The trial court assessed punishment at 180 days of confinement, suspended the sentence and placed Allen on community supervision for one year with a $500 fine, 80 hours of community service and various other conditions of community supervision. Allen appealed. HOLDING:Reversed and remanded. Allen, the court stated, 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 disproven, the law required them to acquit Allen. The court held that the trial court erred in submitting an instruction paragraph that failed to comply with Texas Penal Code �2.03(d), which deals with submission of jury instructions relating to a defendant’s defenses to prosecution. The error, the court stated, concerned the most contested issue in the case. The state’s argument, the court stated, effectively shifted the burden of proof on consent to Allen. The court held that the error was so egregious and created such harm that Allen was denied a fair trial. Despite its reversal of the trial court’s judgment and remand back to the trial court for a new trial, the 1st Court of Appeals nevertheless stated that legally sufficient evidence upheld Allen’s conviction; despite this statement, the 1st Court still reversed and remanded the case for a new trial. OPINION:Hanks, J.; Radack, C.J., and Jennings and Hanks, J.J.

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