Clarkston, GA asked in Criminal Law and Car Accidents for Texas

Q: Charged with aggravated assault with deadly weapon (vehicle )

So I got into a fight with another individual who gave “ consent “ something like mutual combat I have proof of the consent through text message. He texted my ex telling her to bring me to the house so he could “ give me them hands “ So as we began to fight 2 other individuals jumped in and ambushed me. I suffered some pretty bad injuries. I managed to get out of the ambush and began running towards my car and I told them to back off. There was one suv initially blocking the front of my car in the cul de sac as I started my vehicle another suv quickly pulled up and blocked the rear side of my vehicle. One of the individual completely shattered the driver side passenger window while I was in the vehicle trying to escape the vehicle block. As I reversed and turned my steering wheel to the right in order to get out of the vehicle block my rear bumper makes contact with the individual who consented to the “ “fist fight ”. He chases after my car infact after I managed to escape

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1 Lawyer Answer

Kiele Linroth Pace

Answered
  • Criminal Law Lawyer
  • Austin, TX
  • Licensed in Texas

A: This question is marked TEXAS so my answer below is based on Texas law. It appears that the question was asked in Georgia... if the alleged crime happened in Georgia then stop reading now because nothing below will help you.

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There is no need to go down the CONSENT rabbit hole when you've got a so many other legal justifications available.

NECESSITY is great because it is simple and obvious... it doesn't give the prosecution any loopholes.

PROTECTION OF PROPERTY would be straightforward and without too much speculation since they shattered your car's window... so make sure that damage is documented.

SELF DEFENSE is always good because juries get it... but it does include an exception if you provoked the difficulty, which arguably you did by going there with a mind to fight.

CONSENT can be a defense to assault, but the prosecution could argue that the alleged victim may have consented to fight, but he did not consent to being run over by a car. If you win that argument there is still the issue that in this situation the alleged victim could not LEGALLY consent to infliction of SERIOUS BODILY INJURY or the threat of serious bodily injury. Furthermore, a car is a deadly weapon when it is used in a manner capable of causing death or SERIOUS BODILY INJURY. So a CONSENT defense will focus on the alleged victim's injury and the jury will have to decide if it meets the legal definition of SERIOUS BODILY INJURY. If the consent is invalid then you're toast.

DURESS is a OK since it does sound like death or serious bodily injury were real concerns. However, the prosecution could still win on Duress if they suggest that you recklessly put yourself in that position and you can't disprove it. Unlike the other defenses listed above this one is an affirmative defense, which means YOU carry the burden of proof to show duress. The others are defenses to prosecution which means if the defendant raises the issue then the state must DISPROVE it beyond a reasonable doubt.

All else being equal, you are probably better off focusing on the terror experienced by the defendant than the injury to the alleged victim. That said, since juries are unpredictable and there is something to be said for putting them all up and letting the prosecution figure it out.

Circling back to the idea of serious bodily injury (SBI) ... If you can win that argument and show that the vehicle was NOT used in a manner capable of causing death or SBI then the prosecution's Deadly Weapon enhancement is dead in the water and the best they can hope for is a conviction for misdemeanor Assault Causing Bodily Injury. That is good but not great since the arrest for Aggravated Assault would stay on your criminal history forever.

Bottom line is that there are several GREAT defenses available before you even get into mutual combat so hire a criminal defense attorney who knows assault defense like the back of his or her hand and tell your lawyer EVERYTHING. Hiring a great attorney will be expensive but not as expensive in the long run is living with a violent felony on your criminal history. Invest in your future and don't settle for a court appointed plea broker.

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