Legal Definitions: Assault and Battery

Please note: This blog post does not constitute legal advice. For legal advice, please do contact a licensed attorney. I can be reached for a free consultation at 214-702-CARL(2275) or 469.2000(DWI). Thanks, Carl Ceder

Assault and battery can often conjure up images of a typical fight or brawl, and some states even combine the two offenses. However, these terms are actually two separate legal ideas with their own elements.

In short, an assault is defined as an attempt or threat of injury to another person, while a battery is defined as actually striking another person in a harmful. In Texas, the elements for Assault and Battery are the same.

Proof of Assault and Battery:

One of the following needs to apply for a Prosecutor to prove Assault and Battery:

The defendant knowingly, intentionally, or recklessly caused bodily injury to the intended victim.
The defendant knowingly, intentionally, or knowingly threatened this victim with imminent bodily harm.
The defendant knowingly, intentionally, or knowingly caused physical contact with this victim when the defendant should have reasonably believed that this victim would regard the contact as offensive or provocative.

Defenses to Assault and Battery Charges:

Intoxication (NOTE: It cannot be voluntary intoxication)
Age (e.g. If victim is a child and defendant was also a child as well at the time of the crime)
Insanity
Self-defense
No offense occurred
Unintentional or mistake
Lack of knowledge

Penalties for Assault and Battery:

Penalties In Texas for assault and battery convictions urange from a “Class C” misdemeanor (monetary fine of up to $500) to a second degree felony (two to twenty years in prison and a fine of no more than $10,000).

The primary factors that influence which type of penalty is likely to be imposed are the following: Victim’s relationship to the defendant; Defendant’s past convictions, or lack thereof; Whether suffocation or strangulation was involved -

6 Cases to Watch in February

The U.S. Supreme Court is hearing six new cases in the last week of February. The cases touch on a variety of issues that include religious discrimination by a clothing store, performance bonuses, and whether a firearms offender can sell his confiscated guns.

  1. Kerry v. Din - Fauzia Din, a U.S. citizen, filed a visa application for her husband Kanishka Berashk that was denied under a provision that excludes aliens based on an array of terrorism related reasons. When Din tried to appeal for more detail on why this application was denied, the district court said the government had already provided enough reasons, while the court of appeals said it had not. The main issue is whether consular decisions can be reviewed.
  2. Coleman v. Tollefson - In an effort to attempt to curb prisoner abuse, Congress passed a law prohibiting prisoners from claiming indigence with  three or more frivolous complaints. But when counting up the three strikes”, when can a complaint be considered frivolous?
  3. Henderson v. U.S. – A former Border Patrol agent who was convicted of multiple firearms offenses had to forfeit 19 guns as a condition of his bail. Can he get the firearms back to sell them?
  4. Tibble v. Edison International- In a retirement plan case, the Court will decide how long is too long for the employees to file a complaint under the Employee Retirement Income Security Act.
  5. EEOC v. Abercrombie & Fitch - Abercrombie & Fitch is accused of not hiring a employees based on her religion. She says the retailer was aware of her religion because she wore a hijab during her interview.
  6. Baker Botts v. ASARCO - According to a bankruptcy court, the law firm Baker Botts did  work to earn certain fee schedules. The question is whether courts are allowed to order these kinds of rewards.

NFL Takes a Stand Against Domestic Violence and Sexual Assault

With Super Bowl weekend approaching, outside of “deflategate’ everything seems to be going well for the NFL as the end to the 2014-2015 inches closer. However, it was a tough year for the league from a criminal standpoint. We’ve had three huge cases that ultimately have changed athletes careers, probably forever. I’m talking about former Baltimore Ravens running back Ray Rice, former Minnesota Vikings running back Adrian Peterson, and former San Francisco 49ers defensive end Ray McDonald. Each have had their own run in with the law that have ultimately led to their teams releasing or indefinitely suspending them.

Ray Rice was caught on video assaulting his fiance Janay Palmer in an Atlantic City Casino hotel and was initially suspended for just the first two games of the season. As more details were leaked, Rice was then suspended for the whole season and eventually released by the Ravens.

In Adrian Peterson’s case, it was revealed he had beaten his 4 year old son with a tree branch and was suspended indefinitely by the Minnesota Vikings. He would go on to appeal that ruling and lose. After losing his appeal, the NFLPA has filed a federal court appeal with a hearing scheduled for February 6, 2015.

More recently, former San Francisco 49ers defensive end Ray McDonald had been playing this season despite a pending assault charge from August 2014 where he was accused of assaulting his fiance. While that current situation was under investigation, the 49ers continued to let McDonald play, a questionable move considering Rice and Peterson were suspended almost on the spot. McDonald ultimately stepped his bounds in December 2014 where he again was a suspect in another assault case. The 49ers then acted quickly and released McDonald.

It has not been the prettiest year for the NFL but they are hoping the worst of circumstances for some its premier players in the league are behind them. The NFL has however done something about the situation. They began a ‘Say NO MORE’ campaign. Check out the video below.

14 Charged Over Deadly Meningitis Outbreak in 2012

Fourteen people are currently facing federal criminal charges due to a 2012 meningitis outbreak that has killed 64 people nationwide.

The people indicted include pharmacists, co-founders, and pharmacy technicians from the New England Compounding Center of Framingham, Massachusetts. These people are accused of not following proper safety protocols, and in many cases, acting with willful disregard of the risks that are posed by making it ok that drugs have become tainted with bacteria and mold.

The contaminated steroids from the NECC has caused more than 750 people in more than 20 states to become ill, even some with a very rare form of meningitis.

Charges Include 2nd-Degree Murder

The most serious of the charges in the indictment are second-degree murder charges that are against NECC founders Glenn Adam Chin and Barry Cadden.

Calif. Couple Busted Over Alleged Pot Sales on Silk Road 2.0

By Brett Snider, Esq.

A California couple has been charged for an alleged conspiracy to make and distribute pot on the recent incarnation of a black-market website, Silk Road 2.0.

David Schell, 54, and Teri Schell, 59, of Durham, were indicted by a federal grand jury on Thursday for conspiracy to make and distribute marijuana on the illicit Internet hub. According to Sacramento’s KXTV, the couple were charged with 11 criminal counts relating to their alleged scheme to sell pot and pot products online.

So how do these pot growers fit into Silk Road 2.0?

ICYMI, Silk Road 2.0 Explained

It all started with an Internet site called Silk Road. It was a place where anonymous Internet users could buy just about any illicit item or service, including drugs and assassins. Its elusive founder Ross Ulbricht (also known as “Dread Pirate Roberts”) was arrested in October 2013 and charged with money laundering, drug conspiracy, and murder-for-hire. Silk Road was then shut down by the feds.

About a month after Ulbricht’s arrest, <a class=”colorbox” title=”It’s Baaaack: Silk Road 2.0 Is Here” href=”http://blogs.findlaw.com/technologist/2013/11/its-baaaack-silk-road-20-is-here.html” …read more

Source:: Law Blog

Man Gets 43 Years in Prison for Child Support Murder

By Brett Snider, Esq.

A Virginia man has been sentenced to 43 years in prison for killing the mother of his two children over the prospect of paying child support.

Brandon W. Thomas, 28, stood before Judge Harold W. Burgess on Wednesday for sentencing on first-degree murder and felony firearm convictions. According to the Richmond Times-Dispatch, Thomas represented to the court that the investigation and prosecution’s case were “biased, unprofessional, and negligent” and asked that the judge grant him a new trial.

Why did Thomas receive 43 years in this child support murder case?

Recanted Alibi

Thomas’ case is a strange one for a couple of reasons. Not least of which is the fact that Thomas confessed to a friend, Don Van Story, that he killed Bobbie Jo Bell, 27, because “money was tight and he couldn’t afford to support any more children,” reports the Times-Dispatch. The prosecution presented evidence that Thomas was already paying child support for another child of his, and that Bell had filed a child support petition three months before her murder.

Van Story had initially provided Thomas with an alibi, …read more

Source:: Law Blog

What Makes a DUI a Felony?

By Daniel Taylor, Esq.

Anytime you’re cited for driving under the influence, you face potentially stiff criminal penalties as well as restrictions on your ability to drive.

A DUI offense is generally a misdemeanor, punishable by a fine and potentially imprisonment in county jail for up to one year — but typically less. However, under some circumstances, a DUI may be charged as a felony, punishable in some cases by lengthy prison sentences.

What can potentially make a DUI a felony?

Can You Choose Not to Have a Jury Trial?

By Brett Snider, Esq.

Americans have the right to a jury trial when accused of serious offenses under the Sixth Amendment, but can you choose to waive those rights?

A jury of your peers can be between six and a dozen persons with no guarantee of legal background, while a trial by judge places your fate in the hands of one legally accomplished individual.

So when do you get the choice not to have a jury trial, and why would you choose to forgo one?

Guaranteed Jury Trial for ‘Serious’ Offenses

Your right to a jury trial under the Sixth Amendment of the U.S. Constitution applies to “serious” and not petty offenses. For many misdemeanors and infractions, defendants may not have an option to have their cases heard by a jury, so a judge is often the only option.

Most courts have settled that a jury trial must be an option for any offense for which the penalty involves six months of imprisonment or more. However, each state may allow defendants additional rights to a jury trial which is not secured …read more

Source:: Law Blog

Man Answers Boy’s Craigslist Ad for Sex; Gets 12 Years in Prison

By Daniel Taylor, Esq.

A Florida man was sentenced to more than 12 years in prison after answering a teenage boy’s Craigslist ad seeking “adult companionship” and engaging in sexual activity with the teen.

50-year-old Brian Keith Dunn of Coral Springs pleaded guilty to coercing or enticing a minor into engaging in sexual activity, reports the Sun Sentinel. Dunn admitted to communicating with the 14-year-old by text and email, but maintained he never actually met the boy face-to-face.

Police told a different story, however.

Craigslist Ad Received 30 Responses From Men, Women

Dunn and the teen began communicating after the 14-year-old posted an ad on Craigslist seeking what authorities characterized as “adult companionship.” Dunn’s lawyer alleged the teen posted the ad in order to make money by way of prostitution and that the teen’s ad received 30 responses from both men and women.

Among those who responded to the ad was Dunn, whose explicit text messages to the teen were discovered when the teen returned the cell phone he had been borrowing from his mother. The boy told police that he had met Dunn in park, driven …read more

Source:: Law Blog

Can You Get Married in Jail, Prison?

By Brett Snider, Esq.

In addition to being a time-honored institution, marriage has been a hard-won civil right in America. So can inmates in jail or prison take part in the legal sanctity of marriage?

Good news for jail birds and love birds: In most cases, it is possible for prisoners to legally marry their spouses — even if they’re serving life sentences.

So before you start asking the prison commissary if it carries wedding invitations, check out these legal facts about marriage behind bars:

Right to Marry Still Afforded to Inmates

The Supreme Court recognized that marriage was a fundamental right in Loving v. Virginia, but it also recognized in a later case that even prisoners have that fundamental right.

In Turner v. Safley in 1987, the High Court determined that a regulation that prevented inmates from marrying without the permission of the warden violated those inmates’ fundamental rights to marry. Following that case, prisons have allowed inmates to marry — even Charles Manson was able to obtain a marriage license.

State Gay Marriage Rules Still Apply

While it may seem somewhat …read more

Source:: Law Blog