Fort Worth Criminal Defense

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.

Is it unusual for a misdemeanor case go to a grand jury? Simply put, YES.

Most misdemeanor cases in Texas are charged by way of a document called an ”information." An information does not have to be issued by a grand jury. The information can simply be prepared and reviewed by a District Attorney and then subsequently filed in a court with proper jurisdiction. Felony cases, on the other hand, must be indicted by a grand jury unless a defendant chooses to waive indictment and proceed without one.

What is a Grand Jury?

A grand jury in Texas is a group of 12 lay people qualified under the Texas Code of Criminal Procedure. These people must be citizens of the county in which the grand jury sits amongst other basic qualifications. Ultimately, the grand jury’s job is to listen to facts presented to them regarding the cases that they review and determine if probable cause exists for the State to continue forward to court. The grand jury does not have to be convinced beyond a reasonable doubt as to the person’s guilt; they simply need to determine whether it is probable that the person committed the alleged offense based on the facts and testimony presented.

People often mistake a grand jury for a petit jury like they see in movies and television. A grand jury is very different from the juries that hear and decide the final trial. During a grand jury proceeding, there are no arguing defense attorneys or heated opening and closing statements, and there is no judge that physically presides over the process. The grand jury meets together in private room with prosecutors and witnesses. A major distinction of the grand jury is that all grand jury proceedings are secret. The Texas code of criminal procedure clearly states that all grand jury proceedings “shall be secret.” Another basic distinction is that the grand jury is organized and run solely by the district attorney’s office. The grand jury is essentially a tool used by and for the district attorney.

Why is Johnny Manziel's Misdemeanor Allegation Going Before the Dallas Grand Jury?

So – now that you know what a grand jury is and what they do – what does this mean for Johnny Football? If the filing of an "information" is the normal course of action for misdemeanor cases in Texas, why will Dallas County grand jurors review Johnny Manziel’s case tomorrow? That answer rests solely with the Dallas County District Attorney. We can only speculate as to why this may be.

Manziel’s case is obviously high profile for Dallas. If the Dallas DA’s office were to take the case and simply file it with an information or not reject it without the review of the grand jury, they face scrutiny from both sides of the aisle. If they file the case, Manziel’s supporters would claim that the DA’s office is trying to unfairly make an example of his celebrity status and constant publicized antics. However, if they refuse to file the case, Manziel’s critics and domestic abuse activists might claim that his popularity, money, and status are unfairly allowing him out of another sticky situation.

So, what better way to take the District Attorney’s name off of the ultimate decision than to let the Dallas County community – a.k.a. the grand jury – make it? More than likely this is precisely why, unlike most other misdemeanor cases in Dallas County, the grand jury will review Johnny Manziel’s case.

Does this make Johnny Manziel's Case a Felony?

No. A grand jury can hear a misdemeanor case just like it can hear a felony case, we just do not see grand juries used for misdemeanor cases very often. If the grand jury votes to issue an indictment, Manziel only faces a misdemeanor charge for Assault (Bodily Injury) to a Family Member.  This offense is a Class A misdmeanor which carries a punishment range of 0-365 days in county jail and a fine up to $4,000.

Ultimately, this may just be the fairest way for the State to proceed and review Johnny Football’s case and precisely the right time to use the grand jury for a misdemeanor case. As a defense attorney, I wish all of my misdemeanor clients got the benefit of a grand jury review, but the volume of cases is just too high for the State to be expected to process all felonies and misdemeanors through a grand jury.

The jury is still out on Johnny Football’s NFL career, but tomorrow the Dallas county grand jury gets to decide if even more juries lie ahead for this once seemingly-invincible Heisman Trophy winner.

Links to more Manziel Grand Jury Articles:

• Why Bringing Johnny Manziel's Case to a Grand Jury is Abnormal
• Johnny Manziel's case will be heard by grand jury Thursday
• Is Johnny Manziel smarter than a ham sandwich?

Baiza v. State | How Slowly Should an Officer Read Miranda Warnings?

We all know that the police must read the Miranda warnings before they question someone that is under arrest.  But what does that look like in a practical sense? Can the officer read the Miranda warnings like the side effect warnings in a prescription drug commercial, where we can't understand them? Or does he have to read them slowly, ensuring that the person being questioned fully understands each provision?  This issue recently came up in Baiza v. State, an appellate case in the 11th Circuit Court of Appeals.

Gregory Baiza was convicted for sexual assault of his wife and sentenced to twelve years in prison. Baiza was in a common-law marriage with his wife and had two children together. There was an argument between the two when Baiza found out that his wife was pregnant with their third child. Baiza’s wife claims that Baiza forced himself on her after this argument. Eventually the police were called on the scene.

After Baiza’s wife left for the hospital, she decided to press charges on Baiza. A detective came over to get a statement from Gregory Baiza but he refused. The detective then placed Baiza under arrest. Baiza, however, admitted during the second recorded statement that his wife told him to stop but that he kept going - a statement that would ultimately lead to his conviction for rape at trial.

Baiza argued to the Eleventh Court of Appeals that this admission during the recorded statement should not have been allowed into evidence at the trial court. Baiza argued that when the detective read Baiza the Miranda warnings, he read them so fast that they were unintelligible. Specifically, Baiza argued that he did not hear the warning that he was allowed to terminate the interview at any time.

Strict Compliance with Miranda Rules Not Required, But the Reading of Rights Must be Intelligible

In reviewing this issue, the Eleventh Circuit notes that strict compliance with the Miranda rules is not required, but rather a “substantial compliance” will suffice. “Thus, the warnings given to an accused are effective even if not given verbatim, so long as they convey the ‘fully effective equivalent’ of the warnings.” In order for an admission to be allowed in court, the warnings must also be on the recording. The court listened to the recording to determine if the detective gave the prescribed warnings to Baiza. The detective read the warnings from a card to Baiza. The court slowed down the audio and determined that the detective did in fact inform Baiza that he has the right to terminate the interview. However, the Eleventh Circuit determined that when played at actual speed, the “right to terminate” warning is unintelligible.

The Eleventh Circuit determined that because the “right to terminate” warning was unintelligible, that the warnings were not given and that the trial court erred when it allowed the admission into evidence. The Court then went on to find that they did not have fair assurance that the error did not influence the jury or that the error influenced the jury only slightly by incorrectly allowing this admission into evidence. For these reasons, the Eleventh Circuit reversed the judgment and remanded for a new trial.

It is very difficult to get a case overturned, even when evidence has been incorrectly admitted. But here, the Court finds that even though the detective read Baiza his Miranda warnings, reading them so quickly as to make a key part unintelligible was enough to keep out an admission by Baiza from evidence. Specifically, the court finds that the “right to terminate” is a crucial part of the Miranda warnings and that a detective or officer cannot read them so quickly as to make them unintelligible or any admission shall not be admitted into evidence.

Read the full opinion in Baiza v. State.

What Should the Trial Judge Do When the Jury Returns an Unauthorized Verdict?

At the trial of Reginald Nixon for burglary of a habitation and evading arrest, the jury returned a guilty verdict and sentence of 7 years for the burglary and 9 years for the evading. However, the verdict form contained a handwritten note that read: “*To be served consecutively, not concurrently.” A consecutive sentence would mean that the two verdicts are added together to make the actual prison term 16 years. The jury had previously asked the judge whether the sentences would run concurrently and the judge refused to answer them, advising them to simply continue with their deliberations. Without an answer to their question, the jury took the matter into their own hands.

The problem with the jury’s verdict of 7 years and 9 years to run consecutively is that it is not an authorized sentence. Under Texas law, the sentences in Nixon’s case were required to run concurrently rather than consecutively. As a result, the trial judge refused to accept the sentences and reform them to run concurrently (as he was urged to do by Nixon’s counsel). Instead, the judge sent the jury back with a note advising them that the sentences cannot run consecutively. The jury soon returned with new verdicts of 16 years confinement for each offense, which the judge accepted.

Nixon appealed, again urging that the trial judge erred by failing to accept and reform the original jury verdicts. The 2nd Court of Appeals (Fort Worth) affirmed the trial court’s judgments and “reasoned that while the judge may have had the authority to reform the verdict under Article 37.10, he also had the authority to refuse the verdict and return the jury to their deliberations pursuant to this Court’s opinion in Muniz v. State [573, S.W.2d 792 (Tex. Crim. App. 1978)].”

The Texas Court of Criminal Appeals granted review and now reverses the holding of the 2nd Court of Appeals. The CCA highlighted the changes that were made in 1985 when the legislature enacted Section 37.10(b) of the Texas Code of Criminal Procedure. This change distinguished between “informal” and “unauthorized” verdicts. For unauthorized verdicts, Section 37.10(b) provides:

If the jury assesses punishment in a case and in the verdict assesses both punishment that is authorized by law for the offense and punishment that is not authorized by law for the offense, the court shall reform the verdict to show the punishment authorized by law and to omit the punishment not authorized by law.

CCA explained that the lower court’s reliance on Muniz was misplaced since Section 37.10(b) was not enacted at the time Muniz was decided. Further, the verdict form in Muniz was incomplete, unlike the verdict in this case, which was complete but contained an unauthorized portion.

The CCA concluded by holding:

Although the terms of confinement were 45 authorized punishments, the attempted cumulation was punishment unauthorized by law. Article 37.10(b)’s plain language is clear that, when the jury assesses punishment and returns a verdict assessing punishment that is both authorized and unauthorized by law, “the court shall reform the verdict to show the punishment authorized by law and to omit the punishment not authorized by law.” Accordingly, we hold that the judge erred in failing to accept the initial punishment verdicts and omit the jury’s unauthorized attempt to stack the terms of confinement.

Judge Alcala and Judge Yeary dissented.

In the age of social media it seems more and more that our identities are being fast tied to what we post, like, love, or retweet on social media. Our firm handles criminal cases on a daily basis and in the course of our work we’ve seen an increasing reliance by law enforcement and prosecutors on social media websites like Facebook, Twitter, and Instagram. More often than not, investigators are scrolling through the entirety of a person’s social media profiles scouring the information for incriminating statements, pictures or conversations. A Facebook picture or an Instagram post that one might consider innocent, humorous, or obscure could end up being a key piece of evidence used against that person in a court of law.

Here’s what you need to know about social media and the law.

Anything you post on Facebook, Twitter, and Instagram can and will be used against you.

Period. The general rule that citizens need to know is that by exposing information about yourself on social media you are essentially waiving your privacy rights. A person can’t scream at the top of their lungs in an open room the most private fact about themselves and then expect it to go unheard. The same is true about social media. By posting on sites like Facebook, Twitter,and Instagram, you are essentially consenting to whatever information you disclose to be made public.  Even if your profile is set to private, your friends could end up sharing your content. Once public, that information is now available to everyone…including the government. If you are under investigation or suspect you might be under investigation for a criminal offense, and you have social media profiles, never post anything if you think it has even a remote possibility of hurting your case.

What can be done to protect my privacy on sites like Facebook, Twitter, and Instagram?

Don’t post! The first thing you can do is to place a limit and a premium on your social media activity. Some people feel like social media websites are the perfect forum for venting frustrations, making off-color jokes or personally attacking others. If you think about what you are posting in terms of who might potentially see your post, then you should limit the things you say. Remember, anything you post will be considered public information.  If the temptation is too strong to post on social media, then you should really consider disabling your account altogether (at least while your criminal case is pending).

Can Social Media Privacy Settings be used to protect my information?

Privacy settings are the second step in preventing the government or any other unwanted viewers from obtaining your social media information. The majority of the more popular social media websites allow you to limit who can see your information and what can be seen. Putting strict limits on who and what can be seen on your Facebook, Twitter, and Instagram pages can be very effective in preventing unwanted eyes. But is it enough? For the general public, yes, it is. Further, law enforcement agents typically do not have special privileges to see information that has been set to “private” either. But, there are other ways of getting your information and viewing your profiles. Law enforcement has been known to create fake profiles with attractive pictures to entice users into accepting friend requests and allowing them to view information intended for friends only. There is nothing that legally prevents law enforcement from taking such actions.

If my Facebook, Twitter, and Instagram accounts are set to “Private,” is that enough to protect my information?

Ultimately, no. Even if a person hasn’t unwittingly accepted a friend request from an officer or agent and has limited access to their profile via privacy settings, law enforcement can still get a subpoena, court order or search warrant for your social media information.

According to their website, Facebook will only disclose records in accordance with the Stored Communications Act (“SCA”), 18 U.S.C. Sections 2701-2712 and in response to:

• A valid subpoena issued in connection with an official criminal investigation is required to compel the disclosure of basic subscriber records (defined in 18 U.S.C. Section 2703(c)(2)), which may include: name, length of service, credit card information, email address(es), and a recent login/logout IP address(es), if available.
• A court order issued under 18 U.S.C. Section 2703(d) is required to compel the disclosure of certain records or other information pertaining to the account, not including contents of communications, which may include message headers and IP addresses, in addition to the basic subscriber records identified above.
• A search warrant issued under the procedures described in the Federal Rules of Criminal Procedure or equivalent state warrant procedures upon a showing of probable cause is required to compel the disclosure of the stored contents of any account, which may include messages, photos, videos, wall posts, and location information.

So, even if your privacy settings won’t allow anyone to view your profile, law enforcement agencies may still be able to get that information by way of a subpoena, court order or search warrant.

Assume that unwanted eyes will see what you post on Twitter, Facebook, and Instagram.

If you’re under investigation for a criminal offense or charged with a criminal offense, you need to assume that unwanted eyes will see what you post on Twitter, Facebook, and Instagram. Our attorneys have handled cases involving cases where the government has used Facebook, Twitter, and Instagram postings against our clients. We don’t want that to happen to you. Call one of our attorneys and speak to us about what you can do to protect your information and ultimately your rights.

NOTE: The United States Supreme Court has confirmed that the police CANNOT search your cell phone to discover Social Media evidence, text messages, phone call, or anything else without a proper search warrant.