Allen v. State

In Allen v. State, 253 S.W.3d 260 (Tex. Crim. App. 2008), the complainant taunted the defendant by stating, "'go ahead,' 'come on,' 'slap me,' 'hit me.'" Allen, 253 S.W.3d at 267. There the court stated, "common experience tells us that such apparent bravado . . . in the face of an expressed threat does not normally communicate a genuine desire to be assaulted; it far more likely constitutes a backhanded warning of potentially dire consequences to the threatener should she actually carry out her threat." Id. at 268. However, the State fails to note that the Allen court ultimately concluded that the underlying facts were adequate to raise a fact issue relative to consent and require submission of the issue to the jury. There, the circumstances did not require reversal only because the defendant's counsel failed to preserve error. Id.