The following are summaries of selected criminal opinions issued by the Third Court of Appeals from August 2023. The summaries are overviews; please review the entire opinions. Subsequent histories are current as of March 1, 2024.
DEFENSIVE INSTRUCTIONS – CONSENT: Trial court did not err in failing to include additional factual detail in defensive instructions.
Poncio v. State, No. 03-22-00292-CR (Tex. App.—Austin Sep. 21, 2023, no pet.) (mem. op., not designated for publication).
Poncio was charged with assaulting his then-girlfriend. The assault occurred during an argument in a car. After Poncio motioned like he would hit her, his girlfriend said, “Hit me. I dare you.” He then hit her. The application paragraph of the court’s charge included an instruction on the defense of consent. The jury nevertheless found Poncio guilty of assault.
On appeal, Poncio argued that the charge failed to include additional language asking whether the girlfriend consented “when she told the defendant to hit her.” The court rejected this contention. The court explained that “[a] jury charge that tracks the language of a particular statute is a proper charge.” In this case, “the consent application paragraph tracked the language of the consent as defense to assaultive conduct statute.” Moreover, “the application paragraph tracked the Texas Pattern Jury Charge” on consent, and the Texas Pattern Jury Charges, although not the law, “are heavily relied upon by both the bench and bar” in determining what the charge should contain. Thus, the court concluded that the charge was not erroneous.