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Assault

Consent to Fighting Texas

Can Adults Consent To A Fistfight in Texas? Not Exactly.

By | Assault

Put Up Your Dukes! Here’s What Texans Need to Know Before They Decide to Engage in a Fistfight.

Consent to Fighting TexasIt’s no secret that folks don’t always get along. Sometimes, especially down in Texas, arguments can lead to fights. When two adults decide to go to fisticuffs, they can reasonably assume that one (or both) of them are going to get hit. But, are the bruises and black eyes the end of it? Can either of these heroes be charged with a criminal offense for their part in the fight? Maybe. It depends.

Consent as a Defense to a Texas Assault Charge

Section § 22.06 of the Texas Penal Code governs consent as a defense to assaultive conduct. This section allows a party accused of assault or aggravated assault or deadly conduct in violation of sections § 22.01, § 22.02 or § 22.05 of the penal code to assert consent of the victim as an affirmative defense to prosecution so long as serious bodily injury is not inflicted and the assaultive conduct is not a requirement of membership in a criminal street gang. While Section § 22.06 is a defense, it does not grant an actor automatic immunity from prosecution. Ultimately, whether both parties to a fistfight demonstrate consent or the reasonable appearance of consent is a fact-intensive inquiry and is a matter for a jury to decide.

-An Illustration-

In Miller v. State, a father and his adult son engaged in fisticuffs over the usual father-son trivialities. The son admitted in an affidavit to egging his father on, inviting him to “come on, hit me,” lunging at his father in a threatening manner and pushing him. The father hit his adult son, bloodying his face and loosening some teeth. After their fight, the bloodied son was discovered by police offers conducting a routine traffic stop. The father was charged with assault in violation of the Texas Penal Code § 22.01. At trial, the father requested a jury instruction on consent but was denied. He was convicted of assault and appealed. The Court of Appeals, Houston 14th District, reversed the trial court, finding that a jury instruction on consent was appropriate given the facts of the case.[1]

What Constitutes Consent to a Fistfight in Texas?

The consent defense to assaultive conduct applies both when the victim gives effective consent to engage in mutual combat as well as when the actor has a “reasonable belief” of the victim’s consent.[2] When evaluating whether a consent defense might apply, courts look to the circumstantial evidence surrounding the fracas. This evidence is evaluated in the light most favorable to the defendant and must merely support the defense’s assertion of the victim’s consent, it does not necessarily have to be believable. Evaluating the credibility of the alleged consent is a question for the jury.[3]

Though juries must be given instruction on consent if the evidence calls for it, the “true meaning” of a combatant’s words are a variable to be considered. In a decision decided on a technicality the court recognized that words like “go ahead,” “come on,” “slap me,” “do it” were not indicative of consent but were “a backhanded warning of potentially dire consequences to the threatener” in those particular circumstances.[4] The court agreed, however, that this is a question for juries to consider with a consent instruction.

In Miller v. State, the victim son, invited his father to “come on, hit me.” The son later explained to police that he was “all jazzed up” and eager for a fight. The victim then kicked and punched his father before his father punched his son. The appellate court took the provocations of the victim to be a part of the calculus for determining mutuality.[5] It is also notable that no parties called the police, that the police encountered the situation through happenstance and pressed charges on their own authority.

What Constitutes “Serious Bodily Harm” Under Texas Law?

Consent is not a defense to assaultive conduct that results in serious bodily harm. Serious bodily harm is defined as “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”[6] Courts have not produced a definitive demarcation line on what types of assaultive conduct constitute serious bodily harm and what fall short. Serious bodily harm is evaluated on a case-by-case basis[7] accounting for the “disfiguring and impairing quality of the bodily injury.”[8] Injuries are evaluated at the time of the infliction, irrespective of subsequent ameliorating treatment.[9]

Courts have found that the loss of teeth can constitute a serious bodily harm when paired with a sore neck and a week-long hospital stay[10] however, so far, courts have only found the loosening of teeth to rise to the level of serious bodily injury when paired with other serious injuries including fractured facial bones.[11] Blows to the head may or may not constitute serious bodily harm depending on whether they lead to concussion. Similarly, memory loss may or may not constitute serious bodily harm depending on whether it is a product of concussion.[12] Ultimately, if the State alleges serious bodily harm, it is a question of fact for the jury to decide.[13]

In Miller v. State, the state did not allege serious bodily harm and the Court found that the loosening of teeth and the temporary loss of consciousness with no accompanying memory loss did not rise to the level of serious bodily harm.

Jury Instructions On Consent Are Mandatory When Supported By Evidence

In a prosecution for assault, aggravated assault, or deadly conduct in violation of sections § 22.01, § 22.02, or § 22.05 of the Texas Penal Code, the judge must give the jury an instruction on consent and, when charged by the prosecution, serious bodily injury, if the accused has raised any evidence supporting the defense.[14]

“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.”[15]

It is the purview of the jury to determine whether or not the accused had a reasonable belief of consent before engaging in combative behavior. Once the issue of consent is submitted to the jury, the court shall charge the jury that reasonable doubt on the issue requires that the defendant be acquitted.[16]

-Conclusion-

Though a fistfight between consenting adults may well fall into the excepted area carved out by Section § 22.06 of the Texas Penal Code, there are many pitfalls that ought to be avoided. When two parties enter into combat it can sometimes be difficult to establish the mutuality of consent. While consent can be implied from the actions of the participating parties including threatening and inviting speech or belligerent physical action, the more explicit the assertion of consent, the better. If there is sufficient doubt about one party’s eagerness to enter into combat, the consent defense may not apply.

Additionally, when engaging in consensual mutual combat, care must be taken by both parties to not traverse the divide between simple assault and serious bodily harm. Because of the nebulous nature of what constitutes serious bodily harm and the unpredictability in how courts interpret the statute, this can be an especially tricky area to navigate. The difference between a loose tooth and a lost tooth may mark the difference between whether § 22.06 applies.

Finally, both the consent of the parties as well as the gravity of the injuries inflicted are questions for a jury to decide. Though § 22.06 should be introduced as an instruction for a jury to consider when supported by evidence, a person accused of assault still may likely have to undertake the time and expense of a criminal prosecution.

 

[1]          Miller v. State, 312 S.W.3d 209 (Tex. App. – Houston [14th District] 2010).

[2]          § 22.06.

[3]          312 S.W.3d at 212.

[4]          Allen v. State, 253 S.W.3d 260, 268 (Tex. Crim. App. 2008).

[5]          312 S.W.3d at 211.

[6]          Tex. Penal Code Ann. § 1.07 (West).

[7]          312 S.W.3d at 213.

[8]          Blea v. State, 483 S.W.3d 29, 34–35 (Tex. Crim. App. 2016).

[9]          Goodman v. State, 710 S.W.2d 169, 170 (Tex.App.-Houston [14th Dist.] 1986, no pet.).

[10]        Hatfield v. State, 377 S.W.2d 647, 648 (Tex. Crim. App. 1964).

[11]        Pitts v. State, 742 S.W.2d 420, 421 (Tex. App. – Dallas 1987).

[12]        Powell v. State, 939 S.W.2d 713, 718 (Tex.App.-El Paso 1997, no pet.).

[13]        312 S.W.3d at 213.

[14]        Tex. Penal Code Ann. § 2.03 (West).

[15]        Id. at 212.

[16]        § 2.03.

Odor Fight Bautista Assault Self Defense

Can Rougned Odor Be Charged With Assault for Punching Jose Bautista?

By | Assault

Odor Fight Bautista Assault Self DefenseDid Rougned Odor Assault Jose Bautista Under Texas Law?

If you live in Texas, have a pulse and have absolutely any contact with the outside world, you are very aware of the incident that occurred between Texas Ranger’s infielder Rougned Odor and the Toronto Blue Jays’ Jose Bautista during last Sunday’s game. If you have no idea what I’m referring to, STOP reading, watch this video and then come back and finish reading. Bautista was attempting to break up a double play at second base by taking a hard slide at Odor’s legs (which Odor avoided). After the slide, Bautista quickly stood to his feet and squared up to Odor. Odor pushed Bautista and both men went to throw a punch, but Odor was quicker and landed a strike directly on Bautista’s jaw, causing Bautista’s sunglasses to fly and the benches to clear in an all-out brawl between both teams. Under Texas law, if Odor caused Bautista physical pain or even if this physical contact was offensive, Odor could theoretically be charged with assault.

Assault Under Texas Law

Some know (but most don’t) that it doesn’t take much to be charged with a Class A misdemeanor Assault in Texas, even less for a Class C Assault. A person commits the offense of assault in Texas if that person intentionally, knowingly or recklessly causes bodily injury to another. Bodily injury as defined by Texas law means physical pain, illness or any impairment of physical condition.

Theoretically, a simple pinch could result in a class a misdemeanor assault if it causes another pain. The law further goes on to provide that a person commits the offense of assault if a person causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative (that is a Class C and is punishable by fine only).

What are Rougned Odor’s Defenses to a Charge of Assault?

While it is highly unlikely (and unprecedented in a sports context) that Odor would be charged with assault for his actions against Bautista on Sunday, he does have some viable defenses under Texas law.

Self-Defense

In analyzing the situation, it could be argued that Odor’s actions were a result of self defense. Texas law provides that a person can be justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force. Watching the incident again, one can see that Bautista clearly committed an illegal slide by attempting to interfere with Odor’s legs. Had Odor not been able to dodge the attempt, it’s possible that this type of slide could have caused bodily injury to him, hence the reason this type of slide is illegal. Immediately upon rising to his feet, Bautista turns to face Odor in what could be perceived as a threatening stance. Odor, in an effort to distance Bautista from himself gives Bautista a shove to the chest. The shove results in Bautista winding his right hand back which could also be reasonably perceived as preparing to strike Odor. Odor, with reactions obviously much quicker than the sluggish Bautista, literally beats him to the punch and ensures that no further harm can befall him at the hands of Bautista. A reasonable jury could conclude that Odor’s reactions were justified and immediately necessary to protect himself from Bautista’s efforts to cause him harm.

Consent

In addition to the potential defense of self defense, Odor could also raise the defense of consent. Under Texas law, a victim’s effective consent or the actor’s reasonable belief that the victim consented to the actor’s conduct is a defense to an assault charge as long as the conduct did not threaten or inflict serious bodily injury. In addition, consent is a defense to assault if the victim knew that the conduct was a risk of his occupation. Could a jury reasonably conclude that Bautista consented to the assault due to the fact that he should have known that a solid right hook to the jaw was a risk of his occupation – especially following an illegal slide? There are unwritten customs in professional baseball. Anyone who’s followed professional baseball for any significant amount of time has witnessed a fight break out in the course of such extreme competition. Ultimately, a jury could conclude that under these laws there was consent and that Bautista should have known that this type of action was a risk of his occupation.

Will Rougned Odor be Criminally Charged with Assault?

No, he won’t. Fights like this happen on the field of professional sports on a fairly regular basis (even more so on the ice during professional hockey games). In addition to clear defenses, law enforcement has broad discretion to determine whether a crime has been committed and prosecutors have broad discretion whether to pursue cases or not. It’s clear that that discretion is used regularly when these things happen (and I’m sure my prosecutor friends will comment and give even more reasons why this type of thing would never warrant criminal charges). Regardless of the national media coverage of the fight, Odor is now a folk hero in DFW. No, the only indictment being issued from this fight is an indictment on Bautista’s prior behavior and unsportsmanlike conduct. I’m not sure if this saga is over, but I would have to say that Bautista’s sentence has now been served — right off the end of Rougned Odor’s right fist.

Parents Spank Kids in Texas

Spare the Rod or Spoil the Child: Is Spanking a Crime in Texas?

By | Assault

Can a Parent Spank a Child in Texas? Corporal Punishment and The Reasonable Discipline Defense

Parents Spanking in TexasIs Spanking illegal in Texas? No, spanking is not illegal in Texas under most circumstances. The Texas Penal Code provides a defense for parents charged with Injury to a Child under Section 22.04 when the force was used to “reasonably discipline the child.”

Specifically, Section 9.61 provides that a parent’s use of force, but not deadly force, against a child will be justified if the parent “reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.” A reasonable belief is what an ordinary and prudent man would believe in the same or similar circumstances as the actor. It is not based on the particular belief of that parent. This is important to understand, because a parent could use force that they feel is the appropriate discipline for their child in that situation, when in fact that force could easily be an act of abuse that results in facing charges of a third degree felony.

When Does Spanking and Corporal Punishment Cross the Line and Become a Criminal Offense? When is Spanking Illegal in Texas?

In Texas, it is a known practice for parents to spank their children and it is perfectly legal to do so, but the main question is when does spanking or other corporal punishment cross the line to child abuse. When is spanking illegal in Texas? The Texas Penal Code states that child abuse occurs when the force results in bodily injury. Bodily injury means “physical pain, illness, or any impairment of physical condition.” Tex. Penal Code §1.07(8). Often, this is when use of force leaves some sort of mark, like a bruise or a cut. However, this determination will be decided on a case-by-case basis. After all, kids bruise easily and often engage in self-destructive behavior while they are being spanked (I know I did when I was a kid).

As a parent that chooses to use corporal punishment, it is to your benefit to understand that, while you have every right to do so in Texas, there are limits.  The Texas Attorney General website lays out some situations where discipline will likely be considered “abusive:”

  • When striking a child above their waist
  • When using ropes, wires, shoes, sticks, yardsticks, phone cords, and boards during corporal punishment
  • When force causes a “bruise, welt, swelling, or requires medication” it is likely to be deemed abusive

Additionally, the AG describes that the least likely abusive force is spanking with just an open hand (even though most parents that use corporal punishment are taught not to do that as a matter of principle).

If You Choose to Use Spanking or Corporal Punishment to Discipline Your Children, Be Careful.

Bottom line: Yes, parents may spank their kids in Texas. It is legal to use corporal punishment in Texas, but proceed at your own risk of crossing the line to abuse if you leave any type of mark. This rule of thumb will likely allow you to avoid situations like that of Adrian Peterson, a Vikings football player that was indicted in 2014 for injury to a child in Texas for using a branch from a tree to discipline his young son. This is a perfect example to show that while this was a perfectly accepted form of discipline in Texas at one time, it is now unacceptable.

As a parent in Texas this gives you a lot to think about and consider when deciding how to practice your right of discipline. This is just a rough overview of the bounds of reasonable discipline and should you have any questions contact our office. Additionally, if you are a parent and happen to find yourself in a situation where you are being investigated or facing charges for injury to a child, contact our criminal defense team to discuss whether the defense of reasonable discipline fits in your case.

NOTE: The “reasonable discipline” justification also applies to grandparents, guardians, someone working under the court, and someone whom has consent from the parent.

Injury to a Child Defense Attorneys – Fort Worth, Texas

If you are under investigation or have been charged with Injury to a Child for an incident related to the reasonable discipline of your child, contact our attorneys immediately. We will aggressively defend your parental rights in court, in front of a grand jury, or against police investigation. Our firm offers free consultations for all criminal cases. Contact us today at (817) 993-9249.

Aggravated Assault with Deadly Weapon

Can You Assault a Person Even When You Cannot Find Them?

By | Assault

Second Court of Appeals (Fort Worth) holds that Aggravated Assault by Threat does not require personal presence of the victim

Aggravated Assault with Deadly WeaponIn Hernandez v. State (Tex. App.–Fort Worth August 6, 2015), the Second Court of Appeals in Fort Worth, Texas looked that the issue of whether the evidence was sufficient to prove Assault by Threat when appellant brandished a gun to a crowd while looking for the victim.

FACTS: The appellant, Daniel Hernandez, got into an argument with the victim and exchanged hostile words in the parking lot outside a food stand owned by the victim. Appellant told the victim “you’re going down” before he drove left the area in his vehicle. The appellant ultimately returned to the parking lot armed with a gun.

The victim, who had learned that appellant was back and was armed, hid inside of a building behind the food stand. The victim watched from the window as the defendant waved the gun to the crowd that had gathered in the parking lot. The defendant specifically encountered one individual in the crowd, a friend of the victim, and pointed the gun at him. The defendant then left. Approximately ten minutes later, someone shot up the victim’s pickup truck, which was parked outside a nearby home.

Hernandez was convicted by a jury in the 367th District Court in Denton County and was sentenced to 63 years confinement. He appealed his conviction, arguing that the evidence was legally insufficient to sustain a guilty verdict when the alleged victim was not present during the aggravated assault.

A majority of the 2nd Court of Appeals found the evidence legally sufficient to support the conviction for aggravated assault (by threat) with a deadly weapon. The Court concluded that the evidence showed that “Appellant was hunting [the victim] with a gun and was verbally threatening to take him down” near the food stand, “that is, in the location Appellant expected to find him.” The Court reasoned that “it did not matter that the defendant could not find the victim at the location; his actions still rendered him liable for an assault by threat with a firearm. Appellant’s inability to find [the victim] in the crowd did not change Appellant’s conduct.”

Justice Dauphinot dissented. She reasoned that there was no evidence that the defendant “knew that Complainant was watching him” from the building. In her view, the evidence must have established that the defendant specifically knew the victim was present in order to find he intentionally or knowingly placed the victim in fear of imminent bodily injury.

Contact our Fort Worth Aggravated Assault Defense Attorneys at (817) 993-9249

The criminal defense lawyers at Barnett Howard & Williams handle aggravated assault cases including cases involving deadly weapons in Fort Worth, Tarrant County, and Denton County. Contact us today for a free consultation of your criminal case.

CCA Holds Reckless Agg Assault is LIO of Intentional or Knowing Agg Assault

By | Assault

In Hicks v. State, the Texas Court of Criminal Appeals unanimously reversed the 14th District Court of Appeals (Houston) and held that reckless aggravated assault is a lesser included offense of intentional or knowing agg assault.

Appellant was charged with intentional or knowing aggravated assault after he and Angelo Jackson got into a fight over borrowed shoes that ended with Angelo being shot in the leg. The trial judge instructed the jury on intentional or knowing aggravated assault, as charged in the indictment, and he also gave a separate instruction for reckless aggravated assault. The jury convicted appellant of reckless aggravated assault. The court of appeals held that the trial judge erred in giving any instruction on reckless aggravated assault because (1) the original indictment did not charge a reckless state of mind, and (2) reckless aggravated assault is not a lesser-included offense of intentional aggravated assault.

We granted review to resolve a conflict between the courts of appeals on whether “reckless aggravated assault” is a lesser-included offense of intentional or knowing aggravated assault. Applying the plain language of Article 37.09 and adhering to our opinion in Rocha v. State, we conclude that it is. Therefore, the trial judge did not err by instructing the jury on reckless aggravated assault as a lesser-included offense.

Legal Sufficiency of Evidence

Texas Court of Criminal Appeals Updates – Sufficiency of Evidence

By | Assault, Theft

Legal Sufficiency of EvidenceThe CCA handed down two opinions today dealing with legal sufficiency of evidence.  Johnson v. State (Tex. Crim. App. 2012) involved a variance between allegations in the charging instrument and the sufficiency of the proof presented at trial.  Wirth v. State (Tex. Crim. App. 2012) involved a general question of legal sufficiency in light of the recent case, Brooks v. State, 922 S.W.2d 126 (Tex. Cr. App. 1996).

In Johnson v. State, Appellant was convicted on various counts of aggravated assault.  The indictment read that appellant did then and there, “intentionally or knowingly cause serious bodily injury to [the victim] by hitting her with his hand or twisting her arm with his hand.” The complaining witness in the case testified that appellant threw her against the wall and that hitting the wall caused her to fall to the floor and break her arm.  Appellant’s criminal defense attorney argued that the variance between pleading and proof rendered the evidence legally insufficient to support the conviction.  The CCA held that ultimately, “the act that caused the injury does not define or help define the allowable unit of prosecution for this type of aggravated assault offense, so variance at issue cannot be material.” The CCA also stated that this type of variance involved immaterial non-statutory allegations and when a variance like this presents itself it will not render the evidence legally insufficient.

I thought this case was interesting because, as a former criminal prosecutor, I used to try and charge the most accurate manner and means possible.  I came across cases like this occasionally where we alleged one way that a defendant had assaulted a victim and then upon further investigation or questioning of the victim, it looked as if there was going to be a variance.  In those cases, I would amend the indictment to reflect the more accurate description of the manner and means.  Another method that is commonly used by prosecutors is to allege a very broad manner and means.  Often, you will see the manner and means in an assault alleged, “by striking with defendant’s hands.” This language covers various types of assaults (slapping, punching, grabbing, squeezing).  But, in looking at the Johnson opinion, it looks like the bottom-line is that if the language in the indictment involves immaterial non-statutory allegations, it will likely not render the evidence legally insufficient if different evidence comes up at trial.

In Wirth v. State, the Appellant was convicted of the offense of Theft of $20,000 or more but less than $100,000, a third degree felony.  The Sixth Court of Appeals (Texarkana) held that the evidence was legally insufficient to support the conviction and rendered a judgment of acquittal. The State filed a petition for discretionary review.  The CCA found that the Sixth Court of Appeals had erred and reversed the Court’s decision, reinstating the Appellant’s conviction.  The CCA recognized that the Sixth Court of Appeals had reviewed the Appellant’s case and found that the evidence was factually insufficient to support the verdict based on Clewis v. State, 922 S.W.2d 126 (Tex. Cr. App. 1996).  As the Court noted, at the time that the Court of Appeals considered the Appellant’s case, the CCA had not issued its opinion in Brooks v. State, 323 S.W.3d 893 (Tex. Cr. App. 2010) which essentially overruled the factual sufficiency analysis (see our previous post on this issue here).  In light of the Brooks decision, the CCA analyzed Appellant’s case based on the legal sufficiency of the evidence and held that there was legally sufficient evidence (even given that the evidence was purely circumstantial and that the defendant was a party to the crime) to support the jury’s prior verdict of guilt. Accordingly, the CCA reversed the judgment of the Sixth Court of Appeals and affirmed the judgment of the trial court.

What is Assault with a Motor Vehicle According to Texas Law?

By | Assault

The Many Ways to Commit Assault with a Motor Vehicle in Texas

Assault with a Vehicle TexasFaced with the question of whether Reckless Driving is a lesser-included offense of Aggravated Assault With a Motor Vehicle (alleged as a Deadly Weapon), the Texas Court of Criminal Appeals explained that there are, indeed, many ways in which a vehicle can be used as a deadly weapon apart from the vehicle being driven, to wit:

• Locking the victim in a hot car,
• Slamming the victim’s head again the car frame,
• Rigging the car’s gas tank to explode,
• Placing the car in neutral and allowing it to run into the victim or a building,
• Suffocating the victim in the trunk, or
• Running the car in an enclosed area to cause carbon monoxide poisoning.

The CCA used this creative list to reverse the 5th Court of Appeals (Dallas), which had previously held that the trial court erred by not instructing the jury that it could find appellant guilty of the LIO of Reckless Driving if it believed the State did not prove Aggravated Assault w/a Deadly Weapon. The appellant argued at trial and on appeal that the LIO should apply, thereby giving the jury another option.

You can read the full opinion of the Texas Court of Criminal Appeals in Rice v. State here.