Miller was convicted of assaulting a family member under section 22.01 of the Texas Penal Code. The assault arose out a verbal altercation between Miller and his son that turned physical when his son began hitting Miller. During the altercation, Miller's son challenged his father: "You going to hit me, man? Are you going to hit me?" He went on to say, "Come on, hit me, go ahead and hit me." So Miller hit him - bloodying hit face and loosening a few of his teeth.
During Miller's trial for assault of his son, the trial court refused to include the defense of consent or mistake of fact as to consent in the jury charge. For this, the 14th Court of Appeals (Houston) reversed, holding:
The evidence supporting a consent defense may be presented by the State or defense counsel. See Granger, 3 S.W.3d at 38 n.2; Woodfox, 742 S.W.2d at 409. 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. See Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984). If the evidence, viewed in a light favorable to the appellant, supports the defense of consent, then an instruction is required.Did Miller's son consent to a knuckle sandwich? I don't know and neither does the appellate court - that's the problem. The jury - the factfinder - should have had the opportunity to answer the question. I guess we'll see what the jury has to say on remand (if it's worth another trial).
