Assault Archives | Fort Worth Criminal Defense, Personal Injury, and Family Law

Assault as Lesser Included

Assault By Contact NOT an LIO of Assault Bodily Injury

By | Assault

Is the Class C charge of Assault (Offensive Contact) a lesser-included offense of the Class A charge of Assault (Bodily Injury)?

In short, the answer is most likely No.

Assault as Lesser IncludedAn offensive-contact assault not a lesser-included offense of a bodily-injury assault because the offenses have different elements.

The Court of Criminal Appeals, whose opinions are controlling in Texas, held that an offensive-contact assault is not a lesser-included offense (“LIO”) of a bodily-injury assault because what the state was required to prove for one offense differed from what the state had to prove for the other (McKithan v. State, 324 S.W.3d 582, 583, 591 (Tex. Crim. App. 2010)). For a Class A misdemeanor bodily-injury assault, the state must prove that bodily injury (or pain) occurred; the statute does not require the state to prove that the contact was offensive or provocative (Tex. Penal Code § 22.01(a)(1), (a)(3)). An offense is not an LIO if the state must prove different elements for each offense (McKithan, 324 S.W.3d at 583, 591). It is not enough that “proof of the charged [] offense may also” show the other offense; the State must be “required to prove these offenses in establishing the charged offenses” (Id. at 593).

Granted, seven years before McKithan, the Court of Criminal Appeals stated that an offensive-contact assault is an LIO “of (a)(1), because [it is] proved by less than all the facts required to prove (a)(1), specifically, physical injury” (Reed v. State, 117 S.W.3d 260, 267 (Tex. Crim. App. 2003)). However, the Court of Criminal Appeals seemed to move away from this categorical view in McKithan.

Additionally, the appeals court presiding over cases in Tarrant County, the Second Court of Appeals, held that an offensive-contact assault “is not, under the circumstances of this case, a lesser-included offense of assault causing bodily injury” (Welsh v. State, 2009 Tex. App. LEXIS 3592, *4-5 (Tex. App—Fort Worth May 21, 2009)). Other courts echo this sentiment. For example, in Norman v. State, the appeals court held that the trial court did not make a mistake when it refused to instruct the jury on offensive-contact assaults as a LIO of bodily-injury assaults because offensive-contact assaults have a unique element (2019 Tex. App. LEXIS 6690, *16-17 (Tex. App—Amarillo August 1, 2019). And one Houston court stated that “[b]ecause offensive-contact assault is not within the proof necessary to establish bodily-injury assault, it is not a lesser-included offense” (Washington v. State, 2019 Tex. App. LEXIS 5409, *12 (Tex. App—Houston June 27, 2019)).

Thus, offensive-contact assaults are not considered LIOs of assaults causing bodily. An assault under § 22.01(a)(3) has elements unique to it, so one cannot prove an assault under § 22.01(a)(1) by establishing the elements of assault under § 22.01(a)(3).

Confrontation Clause Violation When Accuser Does Not Appear at Trial

By | Confrontation Clause

Tarrant County Trial Court Admits Testimony in Violation of the Confrontation Clause

The Second Court of Appeals recently released a memorandum opinion, which reversed a defendant’s conviction due to a confrontation clause violation. The issue was whether the trial court (Criminal District Court Number 1, Tarrant County) erred in allowing an officer to testify about certain statements the alleged victim made regarding a prior assault allegation.

McDowell v. State—2nd Court of Appeals (2018)

The Facts—Defendant Was Convicted for Felony Domestic Violence

On August 21, 2016, officers were alerted to a domestic disturbance in progress. When officers arrived at the scene they made contact with the victim and the victim’s friend who had reported the disturbance. While talking with the two females, officers noticed multiple bruises on the victim and learned that the suspect (i.e. Defendant), who had allegedly assaulted the victim, was still inside the home. Officers subsequently entered the residence and arrested Defendant.

At trial, dash-cam video showing the accusations made by the two females was admitted. In addition, one of the officers testified to additional statements made by the victim suggesting that the defendant had a history of violence. These additional statements, however, were not included in the dash cam video. Defendant objected to these statements under Crawford because the victim did not appear at trial. Nonetheless, the trial court allowed the out-of-court statements to be admitted over objection.

In addition to the officer’s testimony regarding the hearsay statements, the jury heard from two other witnesses about the cycle of domestic violence. The State then referenced this testimony in relation to Defendant’s history of domestic violence during closing arguments. As a result, Defendant was convicted. Defendant later appealed his conviction arguing that the trial court erred when it allowed the officer to testify to the victim’s statements in violation of the confrontation clause of the 6th Amendment.

Court of Appeals Reverses and Remands Case—Holding the Trial Court Erred in Admitting the Officer’s Testimony

Generally, the Confrontation Clause bars admission of testimonial statements of a witness who does not appear at trial. In determining whether certain statements were testimonial in nature, “the Court looks to see whether circumstances were present at the time the statements were made that would indicate the existence of an ongoing emergency.” If such circumstances existed, the statements are admissible.

Here, the victim did not appear at trial. As such, the Court of Appeals attempted to analyze whether the victim’s statements were testimonial in nature by determining whether they were made during the ongoing emergency. However, the Court was unable to do so because there was no evidence from the State regarding when these statements were made. The Court concluded that without knowing the timing at which the statements were made, there was no way to determine the existence of an ongoing emergency. The Court explained that once there is an objection to the admission of evidence on confrontation grounds the burden shifts to the State. Here, the State was silent in regard to the confrontation objection. And, without the State providing more evidence, the Court could not conclude that the statements were nontestimonial. Accordingly, the Court held that the trial court erred in admitting the statements.

The Court then conducted a harm analysis to determine whether the error impacted the jury’s verdict, which would require a reversal. In making its determination, the Court noted that the majority of the officer’s testimony was based on the inadmissible statements. These statements portrayed a history of violence rather than just one instance. Further, the other witnesses’ testimony hinged on these inadmissible statements. Thus, because the inadmissible statements were a crucial part in establishing the elements of the offense, the Court could not say beyond a reasonable doubt that the trial court’s error did not contribute to Defendant’s conviction and, therefore, a reversal was required.

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]


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.

Texas Hate Crimes

Hate Crimes in Texas | Statistics and Impact of Texas Hate Crimes

By | Hate Crimes

Texas Hate Crimes

Texas Hate CrimesOne of the highest-profile hate crimes in the nation to occur in recent years involved the unprovoked massacre of a historic South Carolina church carried out by Dylann Roof.  Shortly, thereafter, there was the largest mass shooting in American history that occurred in Orlando at a gay night club.  These terrible incidents opened up the flood gates for a national dialogue on the real prevalence and impact of hate crimes in the nation.

In the state of Texas, hate crimes are no less of an issue than any other area of the nation, and their investigation remains a top priority for investigators and social interest groups working against them. The available statistics on hate crime frequency in Texas illustrate the ongoing need for officials to continue their heavy investment of effort in working against discrimination-motivated victimization based on race, religion, gender, sexual orientation, and all other personal identifiers.

Legal Definition of Hate Crime in Texas

Under Article 42.014 of the Texas Code of Criminal Procedure, a hate crime occurs if the:

defendant intentionally selected the person against whom the offense was committed or intentionally selected property damaged or affected as a result of the offense because of the defendant’s bias or prejudice against a group identified by race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference. 

The FBI defines a hate crime as “a criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.”

Out of all the FBI Civil Rights program’s priorities, hate crimes are the highest on the program’s list. The FBI considers those who perpetuate and preach intolerance and hatred to be catalysts for terrorism, and the Bureau treats them as such.

The Texas Hate Crimes Act, recorded in Chapter 411.046 of the Texas Government Code, categorizes any crimes that are perceivably motivated by “prejudice, hatred, or advocacy of violence” as hate crimes. Like the FBI’s classification determiners, these crimes are linked to any prejudices directed at gender, gender identity, religion, disability, race, ethnicity, sexual orientation, disability and religion.

The following statistics collected by the Texas Department of Public Safety are the most recent available for comprehensive insight into hate crime prevalence, locations, offenders, victims and offenses in the state of Texas.

What is the Penalty for a Hate Crime Offense in Texas?

In a criminal case, if the judge or jury makes an affirmative finding that the offense is a Hate Crime, Section 12.47 of the Texas Penal Code outlines the punishment enhancement.  For offenses other than a Class A Misdemeanor or First Degree Felony, the underlying offense is enhanced to the next higher category of offense. For instance, if the offense is a Class B Misdemeanor and the jury returns an affirmative finding that the offense was motivated by prejudice toward the victim’s race, the offense is increased to a Class A Misdemeanor.  First Degree Felonies are not enhanced under Section 12.47 because they already carry a penalty range of 5-99 years in prison. If the underlying offense is a Class A Misdemeanor, it will remain a Class A Misdemeanor but the minimum jail sentence is increased to 180 days. Enhancements for hate crimes are limited to offenses under Title 5 of the Texas Penal Code, or Section 28.02, 28.03, or 28.08, Texas Penal Code.”

Texas Hate Crime Volume

The Texas DPS reported that there were 166 reports of hate crimes in 2014. The hate crimes involved 198 offenders and 190 victims. The most common bias was race and ethnicity, the second most common bias was sexual orientation, and the third most common bias was religiously-motivated. The 2014 figure on hate crime reports was a 23 percent increase from the 2013 figure.

Texas Hate Crime Locations

The DPS reported that hate crimes most commonly occurred in residential homes, at 30.4 percent. Next to residences, the second-most frequent places for hate crimes to occur were roads/highways/streets/alleys, at 16.1 percent. The third most frequent areas for hate crimes to occur were parking lots and garages, at 12.5 percent.

Texas Hate Crime Offenders

The DPS hate crime report’s data on offenders showed that the 198 hate crime offenders were 67.7 percent white, 18.7 percent black, 1.5 percent Asian, 1.0 percent multiracial, and 11.1 percent unknown. The information on Texas hate crime offender demographics was analyzed with the understanding that hate crimes can be perpetuated by different offenders sharing the same race.

Texas Hate Crime Victims

The DPS report’s data on hate crime victims categorized the victims based on the following categories: individual, business, financial institution, government, religious organization, society/public, “other”, and unknown. Individuals were the most frequent victim type, at 84.2 percent. The second most frequent victim type was “business”, at 8.4 percent, followed by government and religious victims at 3.2 percent.

Specific Texas Hate Crime Offenses

The most common type of hate crime offense was simple assault, at 15 percent. The second most frequent hate crime offense was vandalism, at 25.7 percent, followed by intimidation at 18.6 percent.

History of Nationwide Hate Crime Investigation by the FBI

The FBI has historically investigated hate crimes in which the offending party was motivated by the national origin, religion, or ethnicity of the victim. The role of the FBI in hate crime investigation was notably increased after the Civil Rights Act of 1964. In the past, investigators were restricted to cases in which the victim of a hate crime was engaging in an activity under federal protection.

After the 2009 Hate Crimes Prevention Act of 2009, investigators gained a freedom to investigate hate crimes without as much red tape. In addition, the 2009 act also gave investigators clearance to freely investigate hate crimes committed out of a bias against the sexual orientation, gender, disability or gender identity of the victim.


Though the time and manpower investment in hate crime investigation remains heavy, the need for vigilance remains high. According to the FBI’s 2015 report, there were 5,479 hate crime incidents nationwide in 2014; these incidents involved 6,418 offenses to the Uniform Crime Reporting (UCR) program, creating 6,727 victims nationwide. Though the figure was down from the 2013 rate, in which there were 5,928 incidents and 6,933 offenses, the issue remains a top priority for investigators in Texas and the nation at large all year round.

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.


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.


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.

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.

Domestic Violence Defense Lawyers

Unanimous Verdict Not Required for Continuous Family Violence

By | Domestic Violence

Domestic Violence Case Law Update.  Continuous Family Violence.

Domestic Violence Defense LawyersExcept for the military context, you’ve always heard that a jury verdict must be unanimous, right?  Well, not exactly.

Recently, the Sixth Court of Appeals (Texarkana) held that a jury does not have to unanimously agree upon which assaults occurred in order to convict a defendant for Continuous Family Violence, as long as the jury agrees that the defendant committed at least two assaults within the time allotted by statute. Under section 25.11 of the Texas Penal Code, a person who assaults a family member two or more times within twelve months commits Continuous Family Violence. The relevant statutes provides:

(a) A person commits an offense if, during a period that is 12 months or less in duration, the person two or more times engages in conduct that constitutes an offense under Section 22.01(a)(1) against another person or persons whose relationship to or association with the defendant is described by Section 71. 0021(b), 71.003, or 71.005, Family Code.

(b) If the jury is the trier of fact, members of the jury are not required to agree unanimously on the specific conduct in which the defendant engaged that constituted an offense under Section 22.01(a)(1) against the person or persons described by Subsection (a) or the exact date when that conduct occurred. The jury must agree unanimously that the defendant, during a period that is 12 months or less in duration, two or more times engaged in conduct that constituted an offense under Section 22.01(a)(1) against the person or persons described by Subsection (a).

In Hill v. State, the appellant was charged with Continuous Family Violence after the State alleged that the appellant assaulted his girlfriend three times on two different dates within a twelve-month period. The jury returned a guilty verdict, and on appeal, the appellant contended that the trial court erred when it did not instruct the jury that in order to convict, the jury must unanimously agree upon which assaults transpired. Thus, of the possible assaults that may have happened, the appellant argued that some of the jurors cannot find sufficient evidence for one assault and the other jurors find sufficient evidence for another because “it is axiomatic that Texas law requires a unanimous verdict in a felony case.”

Nevertheless, the Court rejected this reasoning. The State advocated following the way of the Continuous Sexual Abuse statute and allow jurors to not unanimously agree on which assaults occurred, so long as the jury agrees beyond a reasonable doubt that at least two assaults did occur within twelve months of each other. Adopting this rationale, the Court ultimately held, “In the circumstances of construing the statute under examination here, it is sufficient to allow a jury to select from a menu of possible bad acts and agree that a defendant committed two of them without the concomitant requirement that the jurors be shown to all concur as to which of the acts did occur.”

As such, as long as a jury unanimously agrees that a defendant assaulted a family member at least twice within twelve months, it does not need to agree upon which assaults actually occurred.  (Note: this same logic applies to continuous sexual abuse cases as well.)

Misdemeanor crimes of domestic violence

U.S. Supreme Court Clarifies Definition of “Domestic Violence” for Lautenberg

By | Domestic Violence

Misdemeanor crimes of domestic violenceIssue presented to the Court: Whether Appellant’s state court assault conviction qualified as a “misdemeanor crime of domestic violence” thereby prohibiting him from possessing a firearm under federal law (18 U.S.C. §922(g)(9)).

United States v. Castleman, 134 S. Ct. 1405 (2014)- In 1996, Congress passed 18 U.S.C. §922(g)(9), which criminalizes the possession of firearms by certain individuals.  This section makes it a federal crime for a person convicted in state court of a “misdemeanor crime of domestic violence” to own, possess, or transfer a firearm if the misdemeanor involved the use or attempted use of physical force.  In 2001, James Castleman was convicted in Tennessee of misdemeanor domestic assault for “intentionally or knowingly causing bodily injury to the mother of his child.” In 2008, federal agents learned that Castleman was selling firearms on the black market.  A grand jury indicted Castleman on two counts of possession of a firearm in violation of §922(g)(9) because of his previous “misdemeanor crime of domestic violence” conviction.

Castleman moved to dismiss the §922(g)(9) charges, arguing that his Tennessee conviction did not qualify as a “misdemeanor crime of domestic violence” because it did not have the “use of physical force” element under §922(g)(9).  The District Court agreed and dismissed the §922(g)(9) counts, reasoning that Castleman’s misdemeanor domestic assault conviction did not qualify as a crime of domestic violence because ‘physical force’ must entail violent contact and that one can cause bodily injury without violent contact, e.g., by poisoning.  The Sixth Circuit affirmed on different grounds.  It held that the degree of physical force required for a conviction to constitute a “misdemeanor crime of domestic violence” is the same as the required for a “violent felony” under the Armed Career Criminal Act, §924(e)(2)(B)(i)-violent force- and that Castleman could have been convicted for causing slight injury by nonviolent conduct.

In a 9-0 decision, the United States Supreme Court overturned the lower courts, holding that Castleman’s conviction of misdemeanor domestic assault qualified as a “misdemeanor crime of domestic violence” for purposes of 18 U.S.C. §922(g)(9). According to the Court, §922(g)(9)’s “physical force” requirement is satisfied by the degree of force that supports a common-law battery conviction- namely, “offensive touching.” Justice Sotomayor, writing for the majority, explained, “Such acts of violence may be relatively minor, and could include hitting, slapping, shoving, grabbing, pinching, hair pulling, or a squeeze of the arm that causes a bruise.” She went on to say, “an act of this nature is easy to describe as ‘domestic violence’ when the accumulation of such acts over time can subject one intimate partner to the other’s control.” Once the court determined that “physical force” was at least offensive touching, the Court then looked to Castleman’s conviction of ‘intentionally or knowingly causing bodily injury’ to the mother of his child.  Because the knowing or intentional causation of bodily injury necessarily involves the use of physical force, his conviction qualified as a “misdemeanor crime of domestic violence” that fell within the scope of §922(g)(9).

So, what are the implications of U.S. v. Castleman going forward?  Now that the scope of §922(g)(9) has been clarified, federal prosecutors seem to have more legal authority to prosecute prior convicts based on state law convictions.  More specifically, if the defendant has been previously convicted for a misdemeanor crime of domestic violence, where the criminal act was any form of offensive touching, the person may be convicted for illegal gun possession under §922(g)(9) if he or she is subsequently caught with a firearm.

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.