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Assault & Homicide Charges

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ASSAULT & HOMICIDE CHARGES
ASSAULT:

Defined:   

TPC Sec. 22.01:

  1. A person commits an offense if the person intentionally or knowingly causes bodily injury to another.  

Punishment Range:

0 days to 1 year in County Jail and a fine not to exceed $4000

Bottom Line:

Assault may hinge on a variety of the elements listed above, eg: identity of the person causing the bodily injury (ex: bar room brawl), whether the person complainant of injury actually experienced “bodily injury” (eg: pain).   The most common issue at trial is whether or not an assault occurred at all (eg: whether or not the person complaining of injury is telling the truth that an assault occurred, which brings into question credibility, motive, etc).  Finally, it may be that the assault did in fact occur, however the person charged was acting in self defense.  These cases are very fact specific and require a thorough analysis to arrive at the proper result.  

ASSAULT FAMILY-MEMBER:

Defined:

TPC Sec. 22.01

  1. A person commits an offense if the person intentionally or knowingly causes bodily injury to:
    1. A person with whom the Defendant has or had a dating relationship, or
    2. A person that lives in the same household as the Defendant, or
    3. A person that is related to the Defendant.    

Punishment Range:

0 days to 1 year in County Jail and a fine not to exceed $4000 *AND* an Affirmative Finding of Family Violence

Bottom Line:

This charge is very serious for two reasons: (1) if convicted, there is an Affirmative Finding of Family Violence (AAFV).  An AAFV will will prevent you from ‘sealing’ the record of the case. It will prevent you from ‘sealing’ the records of future unrelated cases. It will potentially prohibit you from getting a professional license (ex: Barber, Plumber, Electrician, EMT, etc).  It will prevent you from owning or handling a firearm.  (2)  If convicted, a second charge of Assault Family Violence will be enhanced to a 3rd Degree Felony.   These cases are often very messy for the prosecution.  Typically, there is much history, and a lot more going on than the Prosecutor knows about.  More than ½ the time, the Complainant doesn’t want charges pressed – but that does not matter – the DAs can go forward with or without the Complainant/ Victim.  There really are thousands of ways to handle a case like this, and each case is different – if you are being charged or investigated for this type of case, you need to find an attorney with a lot of experience in family violence cases right away to learn how to put yourself in the best position possible.  Attorney Kyle Watkins has handled thousands of family violence cases, his experience and ability will serve you well in getting the best possible result in your case.  

ASSAULT FAMILY-MEMBER 2ND OFFENSE:

Defined:

TPC Sec. 22.01

  1. A person commits an offense if the person intentionally or knowingly causes bodily injury to:

(i) A person with whom the Defendant has or had a dating relationship, or

(ii) A person that lives in the same household as the Defendant, or

(iii) A person that is related to the Defendant.

*and* has a prior conviction for Assault Family-Member.  

Punishment Range:

2-10 years Prison and a fine not to exceed $10,000

Bottom Line:

This is one of the more difficult cases to defend.  Primarily because the jury is told at the very beginning of trial that you have already been convicted once.  A juror may really believe in their heart that they will presume you to be innocent, but it is extremely difficult for even the most forthright jurors to look past your previous conviction and judge the case on its own facts alone.  Typically, Prosecutors love this charge, because it effectively lowers their burden, and they know that they will not need as much proof as they otherwise would have had to bring.  Further, it is terrifying because now you could actually be sentenced to prison.  While it may be in your best interest to fight this case, you need an attorney that will have not just completed a well prepared case for the first phase of trial (guilt/ innocence), but also have a well prepared back-up plan in the event of a guilty verdict and then a second phase of trial (punishment).  Your future will hinge on your lawyer’s ability to convey to that jury just how horrible prison really it, and adequately explain all of the reasons why they should probate (give probation) to whatever sentence they are considering.  

ASSAULT FAMILY-MEMBER ‘CONTINUOUS’ FAMILY VIOLENCE:

Defined:

TPC Sec. 25.11:

  1. 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 assault of a family member.

Punishment Range:

3rd Degree Felony: 2-10 years Prison and a fine not to exceed $10,000 *and* an Affirmative Finding of Family Violence

Bottom Line:

This charge enables a Prosecutor to go from zero to 100 mph on their charge.  The Prosecution knows that if the Complainant states that you made them feel pain, any pain (pulled out a hair on their head, etc) more than once in a year, bang, now they can and will charge this 3rd Degree Felony.  This charge, while very frightening, is not without its problems for the prosecution.  There are many pitfalls that await the overzealous prosecutor that proceeds to trial on this case without a thorough understanding of all the facts at play, and the law that exists behind the face of the charge (eg: case law from higher courts).  

ASSAULT FAMILY-MEMBER STRANGULATION:

Defined:

TPC Sec. 22.01 (b) (2) (B)

(b) A person commits an offense if the person

(2)(B) intentionally or knowingly or recklessly causes the normal breathing or circulation of the blood of the Complainant by applying pressure to the neck or throat, or by blocking the Complainant’s mouth or nose.  

Punishment Range:

3rd Degree Felony: 2-10 years Prison and a fine not to exceed $10,000 *and* an Affirmative Finding of Family Violence

Possibly: 2nd Degree Felony: 2-20 years Prison and a fine not to exceed $10,000 *and* an Affirmative Finding of Family Violence, if you have a prior AFFV conviction

Bottom Line:

These are not easy cases for the Prosecution to win.  First, they are frequently charged, because Police Officers are trained to ask on every domestic violence call: “Was your breathing restricted or not normal in any way?”.  Often the caller/ Complainant will answer “Yes”, even though the officer did not clearly learn whether or not the above crime occurred, or whether the Complainant was exasperated as a result of the argument or fight, and simply was not breathing normally.  Overcharging a misdemeanor Assault by the Officers may mean that you may have to prove your innocence in this case to overcome the charge.  While you will have your fears, and for good cause, there is no alternative but to find the right lawyer to convince the Prosecutor that this is overcharged, and in the alternative, convince the judge, and as a last resort convince the jury that this is an over charge.  

ASSAULT PUBLIC SERVANT:

Defined:

TPC Sec. 22.01 (b)(1)

(b) A person commits an offense if the person intentionally, knowingly or recklessly causes bodily injury to

(1) a person the Defendant knows to be a public servant, while the public servant is lawfully discharging an official duty.

Punishment Range:

3rd Degree Felony: 2-10 years and a fine not to exceed $10,000

Bottom Line:

If you have been charged with this case there is hope, but it is an uphill battle.  The worst part about the charge is that the officer is the victim.  As a general rule, jurors love cops.  They just do.  However, Jurors also seek the truth, and typically find it.  In these cases the “assault” usually coincides with an arrest or detention.  In which case you, at trial, you will be entitled to have the jury decide if this was just an instance of resisting arrest.  Further, typically the person charged was attempting to prevent the arrest from occurring when the officer experienced the pain.  The distinction here is important: if the pain upon the officer was inflicted intentionally, this is a felony.  If the pain inflicted upon the officer was unintentional, and occurred as a by product of resisting arrest, this is a misdemeanor.  There are other ways to attack this charge, but this is by far the most common.  

AGGRAVATED ASSAULT

Defined:

TPC Sec. 22.02

(a) A person commits an offense if the person commits assault on another or threatens another with imminent bodily injury and:

(1) causes serious bodily injury to another, including the person’s spouse; or

(2) uses or exhibits a deadly weapon during the commission of the assault.

Punishment Range:

2nd Degree Felony: 2-20 years Prison and a fine not to exceed $10,000

Possibly: 1st Degree Felony: 5-99 years Prison and a fine not to exceed $10,000 (1st degree only if deadly weapon and serious bodily injury)

Bottom Line:

To get charged with “Agg Assault” you need only threaten someone with a deadly weapon (eg: raise a baseball bat).  NOTE: A deadly weapon is anything that in the manner of its use is capable of causing death or serious bodily injury (ex: knife, bat, car, pillow, etc).  If you are charged with Agg Assault you should take the charge very seriously.  Skilled prosecutors can and do regularly obtain convictions on this charge, even on weak cases.  The weakness on these cases typically lies in the witnesses to the offense.  Either they have something to gain by seeing you convicted, or they are biased, or just not truth tellers/ credible.  One way or another, your attorney must find these and other weaknesses in the case and use them to your full advantage.  The punishment range is severe when there is serious injury, but it is harsh in the extreme when we are addressing a case with no injuries and only threats.  

CRIMINALLY NEGLIGENT HOMICIDE:

Defined:

TPC Sec. 19.05

  1. A person commits an offense if he causes the death of an individual by criminal negligence.

Punishment Range:

6 months – 2 years in “State Jail” Prison and a fine not to exceed $10,000

Bottom Line:  

CRIMINALLY NEGLIGENT HOMICIDE requires the Prosecution to prove the culpable mental state of Criminal Negligence.  We typically see this charge where a Complainant has died and the facts are so weak that manslaughter cannot be charged (eg: Recklessness); however, the Prosecutor feels that something ‘ought to be’ charged.  Frequently, these cases are right on the bubble when they come into the Prosecutor’s office, and it is the family of the Complainant that is pushing the Police or DAs to move off center and to ‘charge something’.. which results in a charge of CRIMINALLY NEGLIGENT HOMICIDE.  Criminal Negligence is defined as “A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The distinction between Criminal Negligence and Recklessness (eg: MANSLAUGHTER), is the “ought to be aware” v. “is aware of but consciously disregards”.  These charges are vulnerable to attack from several angles, though the most common weakness is found when we further break down the definition of Criminal Negligence and see that the more we dig, the more convoluted the definition becomes.  

**Note: these cases are often handled as “investigations” by Police and Prosecutors for months and sometimes years – if you believe you are under investigation for Criminally Negligent Homicide or Manslaughter you have rights to protect, which may affect the outcome of the investigation, and need an attorney to protect those rights immediately.  

MANSLAUGHTER:

Defined:

TPC Sec. 19.04

  1. A person commits an offense if he recklessly causes the death of an individual.

Punishment Range:

2 – 20 years Prison and a fine not to exceed $10,000

Bottom Line:

Here, the Prosecution must prove the culpable mental state of recklessness.  We typically see this charge in cases where the facts of the offense are such that the Prosecutor believes recklessness can be proven (ex: crash causing death while driving 2x the speed limit).  Recklessness is defined as: “a person acts recklessly, or is reckless, with respect to circumstances surrounding his/ her conduct or the result of his/ her conduct when he/ she is aware but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur”.  As you can see, it’s a complicated definition.  The complication is furthered by a knowledgeable criminal defense attorney (1) compelling the Prosecutor to distinguish between this recklessness and other mental states (eg: negligence, see below) and (2) attempt to explain all of this to a jury.  

**Note: these cases are often handled as “investigations” by Police and Prosecutors for months and sometimes years – if you believe you are under investigation for Manslaughter or Criminally Negligent Homicide you have rights to protect, which may affect the outcome of the investigation, and need an attorney to protect those rights immediately.  

MURDER:

Defined:

TPC Sec. 19.05

  1. A person commits an offense if he:

(1)  intentionally or knowingly causes the death of an individual; or

(2)  intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.

Punishment Range:

5 – 99 or Life in Prison and a fine not to exceed $10,000

Bottom Line:  

Murder is not murder, unless it is murder.  A charge of murder sounds simple enough; however, the facts and circumstances surrounding the death are usually anything but simple.  What is meant by the statement above, is that a murder charge is often not an actual murder case.  Often, it is really a self-defense, or manslaughter, or sudden passion, or defense of property/ another, hot pursuit, criminally negligent homicide, even potentially a Misdemeanor deadly conduct – not truly murder.  If you or a loved one has been charged with murder, you need a lawyer to begin the defense investigation of your case right away.  The longer you wait, the harder it will be to develop evidence that shows the jury that this death was not, in-fact, truly murder.  

FELONY MURDER:

Defined:

TPC Sec. 19.02

  1. A person commits an offense if he:
  1. Commits or attempts to commit a felony, other than manslaughter, and in the course of and furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual…

Punishment Range:

5 – 99 or Life in Prison and a fine not to exceed $10,000

Bottom Line:  

As you may glean from the definition above, ‘felony murder’ can occur when a person dies during the course of committing a dangerous felony.  (For example: if while robbing a gas station the clerk is shot and killed, this is felony murder.  NOTE: even if the clerk was shot and killed not by the person committing the robbery, but by a shopper that pulled his concealed handgun and tried to stop the robbery, the charge of felony murder can still be applied to the person that was committing the robbery).   If you are eligible to be charged with this and have not been charged with this yet, you very much want to take steps to assure that this does not happen.  However, if the Prosecution has elected to charge you or your loved one with this offense, she/ he may do so at their peril – namely if the Prosecutor has charged this without paying specific attention to the additional element that must be proven, “an act clearly dangerous to human life”, and all of the relevant caselaw that controls when this element is brought into play – this seemingly convenient charge can cause the Prosecutor tremendous problems that may well result in a case that falls apart in trial.  Ask yourself: What exactly is my exposure here (eg: what are the strengths/ weaknesses in the case as charged?  And, what is out there that a savvy Prosecutor may charge in the future?)?