Assault

Did 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.

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

In 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 Case Law Update.  Continuous Family Violence.

Except 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.)

Issue 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.

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

Faced 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.