Kimberly Lynn Allen, Appellant v. the State of Texas

Summary

A unanimous Court of Criminal Appeals, in an opinion by Judge Price, held that the trial court's omission of reasonable-doubt acquittal language from the jury instruction on the consent defense, though error touching the central contested issue, did not cause the non-objecting appellant actual egregious harm under Almanza. The Court agreed with the court of appeals that the charge as a whole did not cure the deficiency (a conclusion it found consistent with Olivas) and that the prosecutor's closing argument did not confuse the burden of proof, but reasoned that defense counsel's uncontradicted final argument correctly placed the burden of persuasion on the State and that the implausibility of the consent evidence made actual harm remote. It vacated the court of appeals's judgment and remanded for consideration of the appellant's remaining factual-sufficiency point of error.