Travis County Judge Grants Defense Counsel’s Motion for a Directed Verdict and Acquits the Defendant of Assault

It was near closing time and the bars were starting to empty. Defendant had been out with friends and was escorting his fiancé to her car. After a few steps, Defendant saw two large young men approaching from down the block. They were talking loud, making eye contact, walking toward Defendant, and not slowing down. As they continued, the two men charged between the couple knocking Defendant’s fiancé to the ground. When Defendant leaned down to help her up one of the men turned with his hands raised. It all happened in an instant. Defendant threw one punch and knocked him out. The other guy closed in and soon joined his friend on the pavement.

Defendant was arrested for Assault. We helped him with his release from jail and scheduled a visit. He maintained that he had done nothing to provoke these men. They were the aggressors. They were drunk and wanted to fight. He did not know what they were capable of and he feared that they wanted to cause some harm. This was a clear case of self-defense. We both felt that the police got it wrong. The officer had done no real investigation and based his decision on who had gotten the worst of it — not who started it. The prosecutor’s office maintained that the men sustained serious injuries and that the defendant should take a hit on his otherwise clean criminal record.

We disagreed. We didn’t think he should plead guilty to anything. We set his case for a trial before the court.

The state called a witness who claimed to have seen the whole thing. In short, he believed the Defendant was responsible for the Assault. He said that after the men accidentally bumped into the defendant they tried to deescalate the situation. They had their hands up as if to say they were sorry. The witness said they didn’t appear to want to fight and it was the Defendant who overreacted. He implied the Defendant exhibited a guilty mind by walking away after knocking out the injured parties.

On cross-examination, defense counsel uncovered that the witness had prior to the incident already consumed 4 beers, was feeling the effects of the alcohol, and was on his way to another bar. We questioned him about the crowd on the street and learned it was at nearly full capacity and that the witness was about 30 feet from the incident when he saw it. At first the witness said he had an unobstructed view but defense counsel successfully compelled him to admit that he did not see the two complainants as they approached the Defendant, did not make eye contact with them, did not see how fast they were walking nor have a chance to smell alcohol on them. He could not hear the conversation leading up to the fight and he did not remember seeing Defendant’s fiancé get knocked down. At trial, the witness could not remember what the complainants looked like other than they were taller than the Defendant and Caucasian.

After more than 14 months, neither of the complainants could be bothered with showing up for court.

The arresting officer testified that he had not seen the fight nor what led up to it. His role was to question the participants and help facilitate medical transportation. He was very confident that he arrested the right guy. We asked if he had retrieved any Halo camera surveillance footage of the incident to which he responded no. We asked if pedestrians regularly film street fights like this with their video camera phones. He said that yes that was common but he did not try to ask anyone if they had filmed it. Contrary to the story the first witness told, the Officer admitted that the Defendant never tried to avoid apprehension and was patiently waiting a few feet from where it all happened. When asked about the first witness, the officer admitted that he did not know about his alcohol consumption. Defense counsel asked the officer whether someone in the witness’s position might have lost the normal use of his mental faculties after four beers and the officer admitted that it would be a concern.

At a crucial moment during the trial, the prosecutor attempted to have the officer identify the names of the complainants. Their names were pled in the charging instrument and it was necessary for the state to prove their names as an essential element of the State’s case. The officer had no personal knowledge of the complainants’ identities. We repeatedly objected that this was inadmissible hearsay and a violation of the right to confrontation. The prosecutor argued that the State always gets to introduce the names of “the victims” in their cases and that this was somehow an exception to the hearsay rule. We provided the court with a copy of Guerra v. State which supported our position. The court agreed that the officer’s identification of the complainants was inadmissible. Without having personal knowledge of their names, a police officer could not testify to the identities of the complainants. We requested a Directed Verdict and the court granted our request. The State’s evidence was insufficient and Defendant was acquitted of Assault.

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