Jamar Malcolm Archie v. the State of Texas

NUMBER 13-25-00551-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

JAMAR MALCOLM ARCHIE, Appellant,

v.

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2
OF MCLENNAN COUNTY, TEXAS

OPINION

Before Justices Silva, Peña, and Fonseca
Opinion by Justice Fonseca

A jury convicted appellant Jamar Malcolm Archie of assault causing bodily injury,

a Class A misdemeanor. See TEX. PENAL CODE § 22.01(a)(1), (b). Archie appeals his

conviction based on two issues related to the court’s charge to the jury. We affirm because

the evidence did not support Archie’s requested jury instruction and the trial court did not
err in charging the jury with the proper mental states for the charged offense.1

I. BACKGROUND

On August 1, 2024, Archie was an inmate at the McLennan County Jail and slept

in a bunk above Jamian Bishop in a group cell called a “tank.” As seen in a video shown

at trial, at around 4:12 a.m. on August 1, 2024, Archie was sleeping in his bunk when

Bishop walked into frame and looked around the left side of the tank before touching

something on the wall out of frame. Bishop then walked to the bed and briefly touched

something on the top bunk before getting into the bottom bunk. At this point, Archie exited

the top bunk and dressed while checking the same item on the top bunk that Bishop

touched. Archie then stood over the bottom bunk and appeared to address Bishop before

bending down and throwing multiple punches at him. They then grappled and Archie

straddled Bishop. Eventually, other inmates approached the struggle before a uniformed

guard appeared at the cell door and appeared to order everyone away.2 Multiple guards

then entered and broke up the fight.

On August 16, 2024, the McLennan County District Attorney’s Office charged

Archie by information with “intentionally, knowingly, and recklessly caus[ing] bodily injury”

to Bishop. Following exchange of discovery and other pretrial motions, trial began on

September 8, 2025. At the pretrial hearing, Archie’s counsel argued that he should be

allowed to present evidence of the history of Bishop and Archie’s relationship, including

their disciplinary actions in jail and their criminal history, to support a defense of consent.

1 This appeal was transferred from the Tenth Court of Appeals in Waco pursuant to a docket-

equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE § 73.001. We are required
to follow the precedent of the transferor court to the extent it differs from our own. See TEX. R. APP. P. 41.3.

2 The video did not have audio.

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The State responded that a consent defense does not require any relationship history.

The parties also agreed to admit the above-described video footage and other photos.

McLennan County Sherriff’s Office (MCSO) Officer Christopher Dickerson worked

at the jail and was on duty at the time of the incident. He testified he was patrolling when,

upon hearing “a loud commotion,” he went to the tank called “Charles Seven” and

observed Archie on top of Bishop “in a clench.” He did not see any punches thrown but

stated Bishop could not defend himself and that Archie did not release Bishop until officers

entered the area. He did hear Bishop say, “Get off of me so that we can fight.” Dickerson

stated Bishop was injured because of this incident. Outside the jury’s presence, the

parties argued as to whether Dickerson could testify as to Bishop’s reputation for being

aggressive and Archie stated he would seek a consent jury instruction based on this

testimony. The trial court sustained the State’s objection and did not allow this testimony.

MCSO Lieutenant Kristene Crockett testified she worked at the jail and, based on

her experience in the jail system, that the prior-described video depicted Archie assaulting

Bishop. In a recess from her testimony, the parties again argued whether Archie could

question the officers regarding Bishop’s reputation for violence to support the consent

issue. Archie asserted Bishop’s reputation helped support the concept that Bishop

touching Archie’s bunk constituted consent to a conflict. The trial court again sustained

the State’s objection. Crockett’s testimony resumed and she stated she did not witness

the incident and only reviewed the video.

After both sides rested, Archie argued for a consent defense jury charge

instruction. The State argued that the only relevant trial evidence was Bishop telling

Archie to get off of him so they could fight, and, as that statement was made after Archie

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had already assaulted Bishop, it did not support the instruction. Archie responded that it

was appropriate for the jury to decide the fact issue of consent. The trial court denied

Archie’s request and Archie objected.

Trial concluded on September 9, 2025, and the trial court delivered its charge to

the jury. The charge instructed the jury to find Archie guilty of assault if he “intentionally,

knowingly, or recklessly” hit Bishop. Archie objected to the use of “or” when the

information used “and” as he argued that it improperly expanded “the means for the State

to obtain a conviction.” The trial court overruled this objection. Finally, the charge defined

intentionally, knowingly, and recklessly for the jury.

The jury found Archie guilty as described above and this appeal followed.

II. ANALYSIS

Archie’s appeal raises two issues, both related to the jury charge. We address

each in turn.

A. Standard of Review

We review jury charge error in two steps, first determining whether error exists and

then analyzing the error for harm. Abad v. State, 729 S.W.3d 108, 114 (Tex. App.—

Houston [14th Dist.] 2025, no pet.). Because Archie timely objected to both alleged errors,

reversal is required if we find error and there was some harm to him. See id. In assessing

“some” harm, we review “(1) the entire jury charge, (2) the state of the evidence, (3) the

jury arguments, and (4) if applicable, any other relevant information as revealed by the

record as a whole.” Campbell v. State, 664 S.W.3d 240, 245 (Tex. Crim. App. 2022).

B. Consent Jury Instruction

Archie first argues he was entitled to a jury instruction pursuant to Texas Penal

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Code Section 22.06 and that the trial court’s denial of this instruction was harmful error.

Section 22.06 permits a defense to assaultive conduct if Bishop provided effective

consent or if Archie had a reasonable belief that Bishop consented to Archie’s conduct.

See TEX. PENAL CODE § 22.06(a).

1. Relevant Law

“An accused has the right to an instruction on any defense raised by the evidence,

whether that evidence is weak or strong, unimpeached or contradicted, and regardless of

what the trial court thinks about the credibility of the evidence.” Miller v. State, 312 S.W.3d

209, 212 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (citing Granger v. State, 3

S.W.3d 36, 38 (Tex. Crim. App. 1999)). Evidence supporting a consent defense can “be

presented by the State or defense counsel.” Id. “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. If the evidence, viewed in a light

favorable to the appellant, supports the defense of consent, then an instruction is

required.” Id. (citation omitted). Further, if a party claims consent or “mutual combat” as a

defense, “there must be evidence of an antecedent agreement to fight.” Davis v. State,

533 S.W.3d 498, 514 (Tex. App.—Corpus Christi–Edinburg 2017, pet. ref’d) (quoting

Lujan v. State, 430 S.W.2d 513, 514 (Tex. Crim. App. 1968)).

2. Discussion

Archie contends he was entitled to a consent instruction because (1) prior to the

altercation Bishop was “interfering” with his personal items; (2) Archie tapped on Bishop

“before the assault” to talk; (3) after the assault, Bishop uttered “get off of me so that we

can fight”; and (4) Dickerson testified that he heard a verbal altercation prior to seeing

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any physical contact between Bishop and Archie. Archie primarily relies on Bufkin v. State

to support this argument wherein the victim testified the assaultive conduct at issue—

“love bites”—was consensual and the court held the defendant was entitled to a consent

instruction. 207 S.W.3d 779, 784 (Tex. Crim. App. 2006). Archie argues that, like in

Bufkin, the trial court improperly denied an instruction providing the jury the ability to

determine whether there was an alternative version of events for the same instance of

conduct. See id.

Based on our review of the record evidence and relevant caselaw, we conclude

that no evidence supported a consent instruction. Archie’s primary evidence is that some

discussion occurred before the assault and that Bishop was “interfering” with Archie’s

personal items. However, neither Archie nor Bishop testified and therefore the content of

these alleged conversations is not in the record. While we are required to view the

evidence in a light favorable to Archie and credit even weak evidence, the mere fact of

conversations occurring without any other evidence of what was said constitutes no

evidence of consent. See Miller, 312 S.W.3d at 212. Despite Archie’s claims, Bufkin is

not analogous because the victim in that matter directly testified that the conduct at issue

was consensual, unlike here. See 207 S.W.3d at 784.

Further, mere “interference” with Archie’s items likewise does not constitute

consent to assault. Even belligerent conduct such as “yelling, name-calling, food-

throwing, and pushing” has been found not to constitute consent for mutual combat. See

also Skipper v. State, No. 14-00-00484-CR, 2001 WL 893291, at *2 (Tex. App.—Houston

[14th Dist.] Aug. 9, 2001, pet. ref’d) (not designated for publication). Archie cites no

authorities, nor have we found any, to suggest that merely offensive conduct equates

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consent to assault. Rather, consent requires testimony or other evidence indicating a

desire for combat, or an alleged victim striking the first blow or making other aggressive

moves. See Miller, 312 S.W.3d at 212. The record here shows that Bishop was prone on

his bed when Archie threw the first blow and did not testify that he wanted to engage in

combat. See id.

Finally, Archie relies on the fact that Bishop stated a desire to fight after the assault

began. However, the evidence necessary to claim a mutual combat defense requires an

“antecedent agreement to fight.” Davis, 533 S.W.3d at 514 (emphasis added). Therefore,

any statement by Bishop after Archie already assaulted him cannot provide evidence of

an antecedent agreement. See id.; Miller, 312 S.W.3d at 212; Lujan, 430 S.W.2d at 514.

Accordingly, we overrule Archie’s first issue.

C. Mens Rea

In his second issue, Archie claims the trial court erred by charging the jury that he

could be found guilty if it determined his actions were committed “intentionally, knowingly,

or recklessly” while the information uses “and,” and thus expanded the mental culpability

from the information. “[J]ury charges are meant to inform the jury of how to apply the

applicable law to the facts of the case.” Alkayyali v. State, 713 S.W.3d 780, 790 (Tex.

Crim. App. 2025) (citing Alcoser v. State, 663 S.W.3d 160, 164–65 (Tex. Crim. App.

2022)). “The charge ‘must contain an accurate statement of the law and must set out all

the essential elements of the offense.’” Id. (quoting Vasquez v. State, 389 S.W.3d 361,

366 (Tex. Crim. App. 2012)).

Archie does not contend the charge contained an inaccurate statement of the law

or failed to set out all of the offense’s essential elements. Rather, he argues that because

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the information altered the requisite findings as to the culpable mental state to a

conjunctive, the trial court was required to ignore the statute and follow the law as set

forth in the information. See TEX. PENAL CODE § 22.01(a)(1) (using the disjunctive “or” as

to the required mental state). To support this argument, Archie cites caselaw regarding

the State being bound to prove the particular crime it alleges in an indictment even if it

was not the crime the State intended to charge. See Delarosa v. State, 677 S.W.3d 668,

677 (Tex. Crim. App. 2023).

However, this is not an instance of the State charging a different crime than

intended, but, rather, a misstatement of the statute’s required mental state for a particular

crime. See id.; see also TEX. PENAL CODE § 22.01(a)(1). Regardless, the Texas Court of

Criminal Appeals has held that even if “an indictment alleges differing methods . . . in the

conjunctive, the jury may properly be charged in the disjunctive.” Saenz v. State, 451

S.W.3d 388, 390 (Tex. Crim. App. 2014) (quoting Martinez v. State, 129 S.W.3d 101, 103

(Tex. Crim. App. 2004)); see also Essien v. State, No. 05-04-00401-CR, 2004 WL

2397119, at *2 (Tex. App.—Dallas Oct. 27, 2004, no pet.) (not designated for publication).

This matter does not involve a charging instrument alleging different methods of

committing an offense, but, if it did, it would still be acceptable under Texas law. Kitchens,

823 S.W.2d at 258. Therefore, the mere difference in mental states between the

information and jury charge did not improperly expand the proof needed where the jury

verdict was unanimous as it was here. Id. at 258 n.2; see also Pizzo v. State, 235 S.W.3d

711, 716 (Tex. Crim. App. 2007).

In fact, the San Antonio Court of Appeals addressed this exact scenario where the

defendant was charged with “intentionally, knowingly and recklessly causing bodily injury

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but the jury charge permitted the jury to find [the defendant] guilty if they determined that

he intentionally, knowingly, or recklessly caused bodily injury.” See Riley v. State, No. 04-

01-00648-CR, 2002 WL 1285194, at *2 (Tex. App.—San Antonio June 12, 2002, no pet.)

(not designated for publication). There, our sister court determined this complaint was

without merit because “[t]he fact that an indictment alleges matters in the conjunctive and

the charge requires proof in the disjunctive, does not constitute reversible error.” Id.

(quoting Fox v. State, 693 S.W.2d 593, 600 (Tex. App.—San Antonio 1985, no pet.)).

While not precedential, we agree with our sister court’s analysis and adopt it here.

Thus, we overrule Archie’s second issue.

III. CONCLUSION

We affirm the trial court’s judgment.

YSMAEL D. FONSECA
Justice

Publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed on the
7th day of May, 2026.

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