Sherman & Plano, TX Criminal Defense Lawyer Blog
First, the right of confrontation would require the ESPN reporter to be on the stand to testify as to his knowledge. So, imagine in a criminal court Johnny Manziel and the autograph broker were being tried for violating NCAA rules or inducing said violations? There they sit with their lawyers at the defense table. The prosecutor asks the ESPN reporter, sitting on the witness stand, “Mr. Rovell, please tell the ladies and gentlemen of the jury what this autograph broker told you he did with Johnny Manziel.”
“Objection” says Manziel’s defense lawyer. “Hearsay.”
The objection is sustained as to him. What Mr. Rovell heard the autograph broker say is a statement made out of court and offered for the truth of the matter asserted (by the statement). The prosecutor would have two options: 1) move on, or 2) try to find a hearsay “exception” to get the statement into evidence. If he is a cunning prosecutor with lots of experience backdooring evidence, he says to the judge, “I offer the evidence only for its effect on the listener and the reason this witness took further steps in his investigation.” The defense attorney, knowing the evidence is being backdoored in to prejudice the jury and not really to help them understand the effect on the listener, can hopefully get the judge to shut it down. Under Texas law, however, hearsay can be admissible for the “limited purpose” of showing not the truth of the matter asserted, but that the witness was told the information and took further action in response. However, the judge does not appreciate the move and blocks it. What can the prosecutor do now?
The rule against hearsay is one of the fundamental rules of the American justice system. It is very similar, although not completely identical, to the rule requiring confrontation of witnesses in a criminal case, i.e., the right to confront one’s accusers. Our nation’s founders were very disturbed at English prosecutions, such as that of Sir Walter Raleigh, based primarily upon letters from third parties as key evidence. Common sense also dictates that a person telling you what they heard another person say, as if they had observed the events personally, is not in any way as reliable as a first-person recollection of events. Texas Rule of Evidence 801(d) states: “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 802 says “Hearsay is not admissible except as provided by statute or these rules or by other rules prescribed pursuant to statutory authority…”
The first jury trial I won on aggravated assault was trickier because allegation was threatening injury and displaying a deadly weapon. My client was alleged to have chased his ex-girlfriend/child’s mother’s vehicle up and down the highway with his vehicle, and threatened to ram her (he did bump her a little). Fortunately, the jury found him guilty of the lesser included offense of deadly conduct. This can be a reasonable out in many aggravated assault cases, which in reality are deadly conduct cases.
What is a deadly weapon? Well, thankfully the code defines that for us as well. Penal Code 1.07(17) says that “‘Deadly weapon’ means: (A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” In most cases, the latter is the alleged deadly weapon theory.
To understand aggravated assault, one must understand misdemeanor assault. Section 22.01 of the Penal Code defines assault as “(a) A person commits an offense if the person: 1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse; [or] (2) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse…” Texas Penal Code section 1.07(8) says that “‘Bodily injury’ means physical pain, illness, or any impairment of physical condition.” So, to have an assault you must either cause or threaten bodily injury, which in most cases is physical pain (though illness and other physical impairment are sometimes seen.)
One of the most prosecuted and least appreciated criminal statutes is aggravated assault with a deadly weapon. Criminal trial lawyers are separated from other lawyers by their ability to win aggravated cases at jury trial. We go into the case knowing our client is likely to do time if the jury believes they committed the offense, particularly if the client has any criminal history. When people think of aggravated assault, or when I do, I think of someone shooting another person in the leg or beating them with a baseball bat, or maybe pointing a gun at someone and threatening their life (without justification, of course.) Aggravated assault normally carries two to twenty years in the penitentiary, the first two of which and, if a four or more year sentence, half of which must be served day for day before parole eligibility, so it is important to know how easily it can be alleged.