By Collin County Criminal Defense Lawyer Jeremy Rosenthal
Assault is governed by Texas Penal Code Section 22.01(a)(1). That section provides that someone has committed the offense of assault if the person “intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse.” At first blush, this statute looks scarily broad but in Dallas and Collin Counties in Texas, these cases are among the hardest to successfully prosecute.
What is the Definition of “Bodily Injury?”
Texas Penal Code 1.07(a)(8) defines “bodily injury” as physical pain, illness, or any impairment of physical condition.” Again, scarily broad. But not to worry. There are plenty of strong defenses and other mountains the prosecution has to climb if they want to convict someone.
Self defense can absolutely be an affirmative defense in assault cases alleging “bodily injury.” Section 9.31(a) defines self defense as stating in part, “a person is justified in using force against another when an 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 forces…” While words enough are never alone to provoke a self-defense claim, it may be established liberally as well with the conduct of the victim.
A less prominent affirmative defense is consent. A consent defense is just like it sounds — that the person assaulted agreed on being assaulted to the extent of causing bodily injury. A person can never legally consent to aggravated assault or worse (causing serious bodily injury or the use of a weapon). The classic law-school example of consent is where athletes (such as football players) routinely hit one another in the course of an event. Another example could potentially be where the “victim” provokes an assault by inviting someone to hit them (perhaps by physically “bowing-up” to the accused).
Confrontation Clause Issues — Testimony of “Victim” is Usually Necessary
Though every case and factual circumstance is unique, the victim generally has to testify against the accused in an assault case to satisfy all the legal elements of the prosecution’s case. The confrontation clause in the U.S. Constitution mandates that we get to face our accusers in open court. Prior to 2004, the prosecution could successfully prosecute assault cases by calling police officers as witnesses to testify as to what the “victim” said at the scene even though the witness wasn’t in court. Although that is technically known as “hearsay,” the court’s held that the statements usually fall within the “excited utterance” exception to the hearsay rule.
In 2004, a U.S. Supreme Court case called Crawford v. Washington, 541 U.S. 36 (2004) held (and I’m overly-generalizing) that a person’s right to confront accusers can over-ride some of the less established hearsay exceptions — such as an excited utterance.
In English, this means that unless the State can otherwise prove all the elements of their case through other witnesses (perhaps other people that witnessed the alleged assault), then if the victim does not testify, the prosecution’s case is probably going to be legally insufficient and will result in an acquittal. As a note of caution, though, this rule of evidence can be un-intentionally waived by people that represent themselves or even by lawyers that don’t know what they’re doing. You should also know that it is illegal to tamper with or otherwise intimidate a witness… and is frankly it’s a worse offense than the underlying assault charge itself.
Prosecutors also have a hard time with assault cases for the reason that many jurors are hesitant to have the government get involved in the personal lives of others. When they see a reluctant “victim” being forced to testify by the state or when they simply can’t tell who was really at fault in the altercation then they generally render the right verdict — which is NOT GUILTY.
Affirmative Finding of Family Violence
Perhaps an over-riding concern in a family assault case (whether it be a class c misdemeanor assault or a class a as discussed above) is the State’s attempt to hang on your record what is called an “affirmative finding of family violence.” That finding is bad news.
Texas Family Code Sections 71.0021, 71.003, and 71.004 in conjunction with Penal Code 22.01(b)(2)(A) can cause an affirmative finding of family violence to enhance a second offense from a misdemeanor to a third-degree felony. Simply because you get deferred adjudication does not mean this affirmative finding goes away.
People often make the mistake of under-estimating the degree of difficulty and the level of consequences of a family violence/ assault allegation. Having a lawyer that knows what they’re doing is invaluable and can potentially save you mountains of headaches down the road.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice regarding any specific case, you should consult with an attorney directly.