The Middleton Case

The Middleton Case

The Middleton Case

It has been 10 years since the verdict was handed down in the Middleton case and with this being the largest verdict in US history, we’ve been contacted and interviewed by publications shedding light on this case.

SOME BACKGROUND OF THE MIDDLETON CASE

It was Robert ”Robbie” Middleton 8th birthday when he was tied to a tree, doused in gasoline, and set on fire. He miraculously survived the attack, but later died after a courageous twelve-year battle with third-degree burns over 99% of his body. We knew justice had to be served for him and the Middleton family and Ken Bigham Jr. partnered with Craig Sico as lead counsel and took this case on pro bono.

Don Wilbur Collins, the attacker, had never been charged with a criminal offense as prosecutors asserted that there was not enough evidence to prosecute. However, on Robbie’s death bed he gave a 27-minute video testimonial about his attacker, Collins, which was evident during the trial. Additionally, two of the world’s top burn surgeons testified that Robbie’s burns were indeed the worst they had seen in their career. 

Ultimately, a Fayette County jury reached a verdict of $150 billion which is the largest civil verdict in US history. However, all parties in the case knew that this monetary gain would never be received. The goal was to bring attention to the fact that Collins had never been prosecuted for this horrific crime. After the verdict, the Montgomery County district attorney’s office reopened the criminal case and Collins was subsequently convicted of murder by the Galveston county jury. 

Robbie was incredibly brave and impacted so many lives with his story.

Client Testimonial | Heather Middleton, Galveston, Texas

We are the Middleton Family, and we went to Ken to try to get help for my brother and find out why nothing had ever happened….We would most definitely recommend Ken to anyone!

THE BIGHAM LAW FIRM

PERSONAL INJURY | CRIMINAL DEFENSE | FAMILY LAW

Ken Bigham Jr. has nearly three decades of experience navigating the law to protect his clients from unfair treatment by insurance companies, the government and corporations. He believes that Bigham Law’s purpose is to provide outstanding value to its clients and compassionate service to its community. 

FREE CONSULTATION

Ken is an aggressive, extremely experienced lawyer that fights for your rights and negotiates strong and fair settlements for his clients. I highly recommend him and his team

S.O 2020

Family Law, Google Review | Bastrop

Understanding the Types of CPS Cases in Texas

Understanding the Types of CPS Cases in Texas

Understanding the Types of CPS Cases in Texas

The Texas Department of Family and Protective Services (DFPS), sometimes known as Child Protective Services (CPS), handles a variety of cases involving child abuse and neglect.

If you are facing any of the types of CPS cases, allegations of abuse or neglect, your CPS defense will more than likely be focused on one or more of these types of cases.

The Texas Family Code § 261.001 defines the types of abuse and neglect cases handled by the DFPS, and these include:

Physical Abuse CPS Case

Under Texas Family Code § 261.001(1), physical abuse is defined as:

  • An injury that threatens or causes substantial harm to the child, excluding accidents and reasonable parental discipline
  • Failing to take reasonable action to prevent another person from causing physical injury and substantial harm to the child
  • Using a controlled substance in such a way that it results in physical injury to the child
  • “Causing, expressly permitting or encouraging a child” to use a controlled substance

Emotional Abuse CPS Case

Emotional abuse can be more difficult to prove, but Texas Family Code § 261.001(1) defines this type of abuse as:

  • Emotional or mental harm to a child that impairs the child’s growth and/or development
  • Causing or allowing the child to be in a situation that causes continued mental or emotional injury that impairs the child’s growth, psychological functioning or development
  • Using a controlled substance in such a way that it causes emotional or mental injury to the child

Sexual Abuse CPS Case

Under Texas Family Code § 261.001(1), sexual abuse is defined as:

  • Sexual conduct that is harmful to the child’s physical, mental, and emotional welfare
  • Failing to make a reasonable effort to prevent the sexual conduct that is harming the child
  • Encouraging or coercing the child to engage in sexual conduct
  • “Causing, permitting, encouraging, engaging in, or allowing” the filming, photographing or depicting of the child knowing that the media is defined as “obscene”
  • “Causing, permitting, encouraging, engaging in, or allowing” a child to engage in a sexual performance

Medical Neglect CPS Case

Texas Family Code § 261.001(4) defines medical neglect as failure to “seek, obtain or follow through with” a child’s medical care, and that failure resulted in:

  • “Substantial risk” of injury, disfigurement or death, OR
  • “Observable and material impairment” of the child’s development, growth or functioning

Texas CPS will consider whether the parent has a history or pattern of failing or refusing to seek medical care for the child as well as the severity of the condition, whether the child is in pain due to lack of medical care, and the potential impact of not obtaining care.

Parents or guardians may not be considered negligent if the failure to obtain care with a specific treatment is because of legitimate religious beliefs.

 Abandonment CPS Case

Texas law defines abandonment as leaving a child in a situation that would expose him/her to a risk of mental or physical harm, without making arrangements for the child’s care and without intention to return for the child.

Physical Neglect CPS Case

In a CPS physical neglect case, there are allegations or evidence of failure to provide the child with basic necessities, such as shelter, food, and clothing. This excludes the inability to provide these necessities due to financial inability unless the parent or guardian has refused relief services that were offered.

Signs of physical neglect can include but are not limited to:

  • Faulty heating, cooling or ventilation systems
  • Contaminated water or faulty plumbing systems
  • Decaying walls, stairways, ceilings or floors
  • Fecal contamination
  • Broken windows or shards of glass throughout the home
  • Ineffective waste disposal
  • Dangerous sleeping arrangements
  • Untreated infestations of roaches, fleas, or rodents
  • Uncontrolled mold or mildew

Neglectful Supervision CPS Case

Under Texas Family Code, neglectful supervision occurs when a child is placed in or not removed from:

  • A situation that a reasonable person would realize is beyond a child’s physical, mental, and maturity level, and that situation resulted in injury or a significant risk of harm.
  • A situation where the child would be at risk of exposure to sexual conduct.
  • A situation in which the child is “exposed to acts or omissions” that are considered abuse under the Texas Family Code § 261.001(1)(E), (F), (G), (H), or (K).
  • Accidents are generally not considered neglectful supervision.

Domestic violence occurring between spouses within the presence or hearing of the child can also be considered neglectful supervision by a parent. 

Your Best Interest in Mind With CPS Defense. Hiring An Attorney For Your CPS Case.

Allegations of child abuse or neglect are very serious, and DFPS cases can result in the child being removed from the home. It’s important to seek legal counsel if you are facing child abuse allegations. An experienced attorney can help build your CPS defense and achieve the best possible outcome in your case.

We have skilled Family Law Attorneys who are here to help with your CPS Defense. Contact us to get your free consultation and let us help fight for you.

THE BIGHAM LAW FIRM

PERSONAL INJURY | CRIMINAL DEFENSE | FAMILY LAW

Ken Bigham Jr. has nearly three decades of experience navigating the law to protect his clients from unfair treatment by insurance companies, the government and corporations. He believes that Bigham Law’s purpose is to provide outstanding value to its clients and compassionate service to its community. 

FREE CONSULTATION

Ken is an aggressive, extremely experienced lawyer that fights for your rights and negotiates strong and fair settlements for his clients. I highly recommend him and his team

S.O 2020

Family Law, Google Review | Bastrop

The Purpose of Child Protective Services (CPS)

The Purpose of Child Protective Services (CPS)

The Purpose of Child Protective Services (CPS)

What is The Purpose of Child Protective Services (CPS)?

If you have an encounter with the Child Protective Services (CPS) it is likely due to an alleged claim of abuse or neglect of your child. Texas Child Protective Services (CPS) works on behalf of children in adoptive homes, foster care, and familial homes. The purpose of child protective services (CPS) is primarily to protect minors’ safety as well as provide support to certain parents and guardians to promote safe and secure living conditions. CPS operates under the state laws of the social services department to assess, investigate, and intervene when necessary to protect an at-risk child.

What is Covered Under the Law With CPS?

The law provides for a wide range of definitions of abuse and neglect to cover multiple scenarios that put a child in danger. Abuse can be physical, mental, emotional, sexual, or placing the child in situations that could lead to those abuses. Such acts could include allowing the child to use a controlled substance or leaving the child with someone that you suspect will abuse the child. Neglect is a purpose failure to provide necessities to sustain life such as food and shelter or a failure to seek medical care to prevent death or bodily injury.

CPS Investigation Process

Once aware of a case, CPS in Texas has a duty to complete an investigation within 30 days. This investigation could consist of a taped interview of the potentially at-risk child as well as discussions and interviews with other family members. CPS will likely examine the child for physical signs of abuse and may request mental health records. Also, CPS will likely visit the home and discuss the report with the family to take into consideration any explanations provided by the family.

At the completion of the investigation, CPS determines whether there is enough evidence to continue to move forward with the case.  If it is agreed that the child is not at continued risk, the case will be administratively closed as no further intervention by CPS is warranted. However, if CPS directs that more supervision or involvement is necessary, the actions can range from recommending services to help the family address the problem with follow up from CPS to ensure compliance to removing the child from the home and filing a civil court action to protect the child and even to terminate the rights of the parents or other caregivers involved in or aware of the abuse or neglect.

Your Best Interest in Mind With CPS Defense. Hiring An Attorney For Your CPS Case.

The focus of CPS is on the family and the protection of the child within that family unit. If you are contacted by CPS, become involved and take the investigation seriously. Seek an experienced family law attorney that can help you navigate this situation at your earliest convenience. With cooperation and teamwork, a successful resolution may be achieved. Here at the Bigham Law Firm, we have competent family law attorneys who are here to fight for you and your family. We offer free consultations, so contact us today if you’re facing a case with the CPS and need CPS Defense.

THE BIGHAM LAW FIRM

PERSONAL INJURY | CRIMINAL DEFENSE | FAMILY LAW

Ken Bigham Jr. has nearly three decades of experience navigating the law to protect his clients from unfair treatment by insurance companies, the government and corporations. He believes that Bigham Law’s purpose is to provide outstanding value to its clients and compassionate service to its community. 

FREE CONSULTATION

Ken is an aggressive, extremely experienced lawyer that fights for your rights and negotiates strong and fair settlements for his clients. I highly recommend him and his team

S.O 2020

Family Law, Google Review | Bastrop

WHAT IS THE DIFFERENCE BETWEEN ASSAULT vs. AGGRAVATED ASSAULT?

WHAT IS THE DIFFERENCE BETWEEN ASSAULT vs. AGGRAVATED ASSAULT?

WHAT IS THE DIFFERENCE BETWEEN ASSAULT vs. AGGRAVATED ASSAULT?

How is the Term ‘Assault’ Used?

The term “assault” is one of the most commonly used terms in the Texas criminal statutory scheme and common law jurisprudence. Although it is frequently used, its meaning is not always uniform since the word is not statutorily defined. The term is more of a generic word, and is used in a wide variety of ways to describe specific types of criminal conduct.

In most instances, assaultive behavior involves some form of violent physical contact, but not necessarily.   

Types of Crimes Where the Term ‘Assault’ is Directly Used 

In general, we have two levels of misdemeanor assaults, ranging from Class ‘C’ assaults punishable by a fine only, to Class ‘A’ assaults, punishable by up to a year in the county jail and a fine not to exceed $4000.  On the felony end of the spectrum, we have Aggravated Assault, which is a more serious version of the misdemeanor category. The Penal Code also uses the generic term assault to name various other types of crimes, such as Indecent Assault, Sexual Assault, Aggravated Sexual Assault, and Intoxication Assault, etc.  Each of these crimes describes behavior quite different from one another.

All felony convictions carry a penalty range which includes incarceration in the Texas Department of Corrections (i.e. the penitentiary), not simply the county jail, along with a fine not to exceed $10,000.  As we shall see, even some of the misdemeanor-variety assaultive behavior can become a felony, depending on the factual circumstances of the case.

What Constitutes a Misdemeanor (‘Simple’) Assault Case?

Section 22.01 of the Texas Penal Code recites that:

A person commits an offense if the person:

  • intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;
  • intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or
  • intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

The second two offenses listed above are usually deemed Class ‘C’ misdemeanor offenses. They are often referred to as Assault by Threat, and Offensive Touching, respectively. These Class ‘C’ assaults can become higher level offenses if directed at certain protected classes of individuals, like the elderly or disabled.

The first offense on the list is called Assault with Bodily Injury, or sometimes just simple assault.  It is usually a Class ‘A’ misdemeanor, carrying a jail term of up to one year. This crime is what most of us think about when we hear the term assault. A simple assault can also be charged as a serious felony offense if committed against protected classes of individuals (such as public servants, elderly, etc.), or in repeated family violence situations, or if there is any impeding of the normal breathing or circulation of the victim by strangulation or blocking the person’s nose or mouth.

 From a prosecution standpoint, the proof of bodily injury is a very low standard, meaning that it’s easy to prove. A bodily injury is defined by the Code simply as any physical pain, illness, or any impairment of physical condition. So during trial, if the prosecutor asks the victim of the crime: “Did it hurt when . . . ?” or “Did you feel pain when . . . ?” – and the victim responds affirmatively, then the prosecutor has established his burden to prove the element of bodily injury as a matter of law.

What Constitutes a Felony Aggravated Assault Case?

In contrast to a simple assault, the Texas Penal Code §22.02 provides that an assault is an Aggravated Assault when a person commits an assault, and the person:

  • causes serious bodily injury to another, including the person’s spouse; or
  • uses or exhibits a deadly weapon during the commission of the assault.

 A serious bodily injury is an injury which creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Again, this is a statutory definition. Similarly, a deadly weapon is defined by statute as:

  • a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
  • anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Note that the weapon does not necessarily have to be used; it can simply be exhibited

The crime of Aggravated Assault (with or without a deadly weapon) is a Second Degree felony, punishable by 2-20 years in the Texas Department of Corrections, and a fine not to exceed $10,000.  Just as with the misdemeanor offenses, there are also multiple factual situations which can cause this Second Degree to be punished as a First Degree felony. Furthermore, if a deadly weapon is charged and proved, there are enhanced parole consequences for the person convicted.

Illustrative Scenarios

Let’s see how this statutory scheme works under the following scenarios: 

Example #1: The defendant and victim get into a verbal conflict. The defendant loses his temper and punches the victim in the face with his fist hard enough for the impact to cause pain to the victim. What crime, if any, has the defendant committed?

Answer:  By virtue of the punching the victim in the face, the blow constituted an assault. At this point the charge against the defendant would be a misdemeanor Class ‘A’ simple assault, as discussed above.

Example #2:  In the same fact pattern as Example #1, the blow to the face was hard enough not only to cause pain, but to break the victim’s eye socket.  Is this now still a simple assault? Or an Aggravated Assault?

Answer:  Under the case law interpreting the statutory definition of serious bodily injury, the breaking of a bone is generally considered a protracted loss or impairment of the function of any bodily member or organ. As such, this would fit the statutory elements of an Aggravated Assault. Defendant could be prosecuted as a felon.

Example # 3: In the same fact pattern as Example #1, the defendant was holding a pistol in his other hand as he punched the victim, but never fired or even pointed the pistol at the victim. Is this an Aggravated Assault, or a simple assault? 

Answer:  Aggravated Assault.  By having the pistol in his hand during the commission of the assault, the defendant was exhibiting a deadly weapon. The deadly weapon does not actually have to be directly used. Therefore, under this fact pattern all the elements of Aggravated Assault have been met.     

Example #4:  In the same fact pattern as Example #3, except that instead of punching the victim with his fist, the defendant merely raised his pistol and pointed it at the victim during the heated argument. No shots were fired. What, if any, crime has the defendant committed? 

Answer:  Pointing a pistol at the victim during a heated argument would be a threatening act, hence an assault.  And, since a deadly weapon was used or exhibited during the commission of the assault, the actions meet the elements of an Aggravated Assault. Note that the crime charged would be the same whether the defendant fired a shot, or not (unless, of course, the shot fired caused the death of the victim, in which case the charge would be Murder).

How can I get more information about this topic?

If you are charged with a criminal offense you should contact a competent defense attorney skilled in the practice of criminal law immediately in order to begin work on your defense.  The Bigham Law Firm has the attorneys with the experience and resources to properly represent you in these difficult types of criminal defense cases.  

If you would like more information about how to protect yourself in any criminal case, please call the Bigham Law Firm at (979) 743-4153 for a free consultation.

 

THE BIGHAM LAW FIRM

PERSONAL INJURY | CRIMINAL DEFENSE | FAMILY LAW

Ken Bigham Jr. has nearly three decades of experience navigating the law to protect his clients from unfair treatment by insurance companies, the government and corporations. He believes that Bigham Law’s purpose is to provide outstanding value to its clients and compassionate service to its community. 

FREE CONSULTATION

This firm gave me my life back. Before Ken and his team I almost gave up hope and caved. He gave me back a chance to finish my schooling, move past what was done to me, and handed back the tools I needed to be a man.

Here I am now a father to a beautiful little girl and building a small business. I can say if I didn’t meet Ken, the story would have been not quite the same. Nothing but love and appreciation from me and my family.

J.S. 2019

Criminal Defense, Facebook Review

What are the Dram Shop Laws?

What are the Dram Shop Laws?

What are the Dram Shop Laws?

The “Dram Shop Laws” refer to a specific category of legislation in Texas and other states dealing with the civil liability associated with bars and other business establishments which serve alcoholic beverages to the public. As the name implies, a “Dram Shop” refers to the drinking establishment itself. The laws establish potential liability for those establishments if they serve alcoholic beverages to patrols who are clearly intoxicated and who cause personal injury or damage to innocent victims.

Typically these laws come into play in drunk-driving situations, where the drunk driver causes personal injury, death, or property damages to another individual. Before the enactment of the Dram Ship Laws, the only remedy for the victim of the accident was to sue the individual drunk driver for damages. Under the Dram Shop statute, however, the victim may, under certain circumstances, also be able to recover damages from the drinking establishment that served alcohol to the drunk driver.

The Dram Shop Law in Texas

In Texas, the Dram Shop Act is found in Title I, Chapter 2, of the Texas Alcoholic Beverage Code. Under the Act, a person who provides, sells, or serves an alcoholic beverage may incur liability upon proof that:   

(1) at the time the sale or service of alcoholic beverage occurred it was apparent to the provider that the individual being sold, served, or provided with an alcoholic beverage was obviously intoxicated to the extent that he presented a clear danger to himself and others;  and

(2) the intoxication of the recipient of the alcoholic beverage was a proximate cause of the damages suffered.

In addition, if the provider holds a liquor license or permit that allows them to conduct their business, that license or permit may be revoked based upon the same elements of proof.

What if the intoxicated person being served was a minor? 

A different provision exists for minors under the age of 18. Under the Act, an adult 21 years of age or older is liable for damages proximately caused by the intoxication of a minor, if the adult knowingly:

(1) served or provided to the minor any of the alcoholic beverages that contributed to the minor’s intoxication; or

(2)  allowed the minor to be served or provided any of the alcoholic beverages that contributed to the minor’s intoxication on the premises owned or leased by the adult.

This provision does not apply to an adult who is the minor’s parent, guardian, or spouse, or who has legal custody of the minor who caused the damage.

Thus, if an adult serves or provides alcohol to a minor who injures himself or someone else as a result of intoxication, the adult who served the minor can be held liable for damages. In the case of minors, the server incurring liability can be a private individual, not only a drinking establishment. Furthermore, many of the defenses that help to shield and protect businesses and private individuals from liability when serving an adult do not apply when a minor is served alcohol.  

What are the legal implications of the Act?

The intent of this law is not to absolve the intoxicated driver of liability under the law. The victim of an accident can still sue the driver, and almost certainly will do so. What the law seeks to accomplish is to provide legal grounds to also hold the drinking establishment financially liable as well, provided the elements of the cause of action are met. After all, the drunk driver may be an uninsured motorist, which means that the plaintiff/victim would have little or no financial recovery if they had no other appropriate target for their claim. 

The elements of the claim:

In order to recover damages against the serving establishment, the plaintiff has to show that:

  • the drinking establishment must have served an obviously intoxicated person who was a danger to himself or others;
  • the intoxication of the illegally served customer must have been the proximate cause of an accident; and
  • the injuries or death, and the civil damages associated with them, must have resulted from that accident.

Obviously this Act provides only a potential source of recovery for injured plaintiff, and does not guarantee that the drinking establishment will be held liable. The plaintiff has the burden of proof by preponderance of the evidence that the stated elements exist. This may be a difficult task to establish in trial, so competent legal representation for the plaintiff is essential.

Does the Dram Shop Act apply to private individuals?

The short answer to this question is “generally no.”

The Dram Shop Act only applies to “providers,” and that term is specifically defined as “a person who sells or serves an alcoholic beverage under authority of a license or permit issued under the terms of this code or who otherwise sells an alcoholic beverage to an individual.”

Therefore, if the host of a private party serves an individual too much alcohol, the host would generally not incur liability under this Act; unless, as discussed above, the intoxicated individual being served happened to be a minor under the age of 18. Otherwise, there would be no liability for a party host to serve alcohol to an intoxicated adult since the host was not selling beverages at the party, and since the host was likely not a holder of a license or permit to sell or serve alcohol.

The Dram Shop Act is an exclusive remedy

When it comes to suing a drinking establishment, the Dram Shop Act is an exclusive remedy. That means those typical common law tort actions, such gross negligence, are not available to the plaintiff as a viable cause of action against a bar that acts inappropriately by serving an intoxicated individual. So if the injured party is not able to meet the elements of the Act, the drinking establishment will be free from a claim of damages. In this respect, the law is a compromise between the public’s need for legislation, and the pro-business demographic that wants to protect itself from civil liability.

How should I contact a lawyer?

If you or a loved one is injured by a drunk driver, you may have a Dram Shop Act remedy available to you for the recovery of significant monetary damages. Business establishments will do anything to avoid liability, so it is imperative that you act immediately by contacting an attorney to begin investigating the case before the evidence is lost or destroyed. The Bigham Law Firm has the attorneys with the experience and resources to properly represent you in these difficult types of cases.

If you would like more information about how to receive the benefits that the Dram Shop Laws provide, please call the Bigham Law Firm at (979) 743-4153 for a free consultation.

THE BIGHAM LAW FIRM

PERSONAL INJURY | CRIMINAL DEFENSE | FAMILY LAW

Ken Bigham Jr. has nearly three decades of experience navigating the law to protect his clients from unfair treatment by insurance companies, the government and corporations. He believes that Bigham Law’s purpose is to provide outstanding value to its clients and compassionate service to its community. 

FREE CONSULTATION

This firm gave me my life back. Before Ken and his team I almost gave up hope and caved. He gave me back a chance to finish my schooling, move past what was done to me, and handed back the tools I needed to be a man.

Here I am now a father to a beautiful little girl and building a small business. I can say if I didn’t meet Ken, the story would have been not quite the same. Nothing but love and appreciation from me and my family.

J.S. 2019

Criminal Defense, Facebook Review

What is Intoxication Assault?

What is Intoxication Assault?

What is Intoxication Assault?

Everyone is aware that drunk-driving laws are in effect in Texas and every other state in the union.  Some states call their law Driving Under the Influence (DUI).  In Texas, the legislature has named our law Driving While Intoxicated (DWI). Regardless of what the law is called, the crime is basically the same: if you get behind the wheel after having lost the normal use of your mental or physical faculties as a result of the introduction of alcohol, drugs, or a combination thereof into your body, you are likely going to jail.

In Texas, a first offense DWI is a misdemeanor which can land you up to six months in the county jail, and a fine up to $2000. You will also lose your driver’s license, which will cost you time, money, and considerable effort to have reinstated. And with subsequent offenses, the penalty range will go up substantially from that first-offense starting point.

Intoxication Assult

What a lot of people do not realize, however, is that there are a half-dozen or more spinoff offenses emanating from the basic DWI scenario. Each one of these offenses can make your legal experience even more unpleasant than what it would otherwise be with just a standard DWI conviction.   

For instance, what if you were behind the wheel while legally intoxicated, and you have a wreck which causes serious bodily injury to someone in another vehicle, or even to a passenger in your own vehicle?  If this happens, you will likely be charged not with simple DWI, but with Intoxication Assault.

Intoxication Assault is a crime specially enacted by the Texas legislature to address incidents where a person has an accident while driving while intoxicated, and by reason of that intoxication causes serious bodily injury to another individual.  Unlike a first-offense misdemeanor DWI, this offense is a felony for which you could be sentenced to the state penitentiary.

“Serious bodily injury,” as defined by the statute creating Intoxication Assault, is an injury which creates “a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.”  This definition is a mouthful, and sounds like an extremely high standard. But even a broken nose may cause “permanent disfigurement,” and a nose is not hard at all to break upon impact. So the proof needed to establish the element of serious bodily injury is generally not difficult for a prosecutor to find when reviewing a drunk-driving related accident where some injury is involved.

How Does The Prosecution Prove Driving While Intoxicated?

As mentioned above, in order to prove a person guilty of Intoxication Assault, the State must first show that the defendant was guilty of DWI.  If the prosecutor cannot prove the defendant was guilty of DWI, it cannot prove Intoxication Assault even if there was a serious accident where injuries occurred.

A finding of DWI is complete if the prosecutor can show that a person was intoxicated while operating a motor vehicle in a public place.  In this context, “intoxication” does not necessarily mean “drunk” in the normal sense of the word.  Intoxication, as defined by the Texas Penal Code, means:

(a)  not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body;  or

(b)  having an alcohol concentration of 0.08 or more.

This legal definition of intoxication is a fairly low standard.  Therefore, a person charged with DWI might feel as though they are perfectly “sober” by their subjective understanding of the term, yet be quite intoxicated according to the legal definition.  

The Prosecutor Must Also Prove The Element Of Causation!

The prosecutor’s burden to establish the crime of Intoxication Assault is not over simply by showing that the driver was guilty of DWI at the time of the accident which causes injury.  The State must also prove that the defendant’s intoxication was a necessary causal factor in the resulting injuries involved.  In other words, the State must show that but for the intoxication of the defendant at the time of the vehicular accident, the serious bodily injury incurred by the innocent party would have not occurred.  

Penalty Range

Intoxication Assault is usually a third degree felony which is subject to a penalty range of not less than two, nor more than 10 years’ incarceration in the state penitentiary, and a fine not to exceed $10,000. There are various scenarios, however, where this offense can be enhanced to a higher level. And just as with a standard misdemeanor DWI, you will lose your driver’s license, which will be a considerable disruption to your life even if you somehow manage to escape a penitentiary sentence.  

Defenses to Intoxication Assult

A skilled criminal defense attorney has many strategies to defend you against the charge of Intoxication Assault.

Most of those strategies start with attacking the prosecution’s underlying case of driving while intoxicated. If your attorney can successfully defend the allegation that you were legally intoxicated at the time of the accident, then the prosecution’s case for higher offense of Intoxication Assault will fail. Your attorney should know the best approach to use based upon the specific facts of your case.

The offense of DWI is a complicated crime unto itself, and there are many tactics available to defend against the charge. For instance, if the State is relying on breath test results to prove intoxication, oftentimes the defense will attack the science of the intoxilyzer instrument itself, which will involve intense cross-examination of the prosecution’s expert witness with the objective of discrediting the science of infrared spectrometry breath alcohol instruments. On the other hand, if a blood test is involved, your attorney might focus on the collection and storage of the blood sample, as well as the science involved in analyzing the vile of blood taken at the time of your arrest.

Perhaps the second most common strategy is to contest whether your level of intoxication (if indeed you were legally intoxicated), was actually the cause of the accident. Your attorney may be able to establish that the driver of the other vehicle was actually at fault, and that the accident would have happened regardless of your intoxication. For instance, if the other driver ran a stop sign and crashed into the side of your vehicle as you were driving carefully down the roadway, then chances are good that a jury would conclude that the alcohol you had consumed was not a factor in the collision.

Another key element that is subject to attack is whether the resulting injuries of the innocent party fall into the definition of “serious bodily injury.” In order to challenge this element effectively, it may be necessary to hire an expert medical witness to examine the medical records and testify on your behalf. Oftentimes, however, the injuries may be so severe that any attacks on this element would backfire if presented to a jury, which means that your attorney may decide that the best strategy is to focus on other elements of the State’s burden of proof.

The bottom line is that Intoxication Assault is a complicated offense for the State to prove, and for your attorney to defend. Due to the amount of science involved, you should expect your attorney to have specialized expertise in the defense DWI-type cases.

Not every lawyer, not even every experienced criminal lawyer, will give you effective representation in this type of case. You need, and should demand, that your attorney be competent to represent you with a charge of Intoxication Assault.

How can I get more information about this topic?

If you are charged with Intoxicated Assault, DWI, or related crime you should contact a competent defense attorney skilled in the practice of criminal law immediately in order to start work on your defense.  The Bigham Law Firm has the attorneys with the experience, and resources to properly represent you in these difficult types of cases.  

If you would like more information about how to protect yourself in any criminal case, please call the Bigham Law Firm at (979) 743-4153 for a free consultation. 

THE BIGHAM LAW FIRM

PERSONAL INJURY | CRIMINAL DEFENSE | FAMILY LAW

Ken Bigham Jr. has nearly three decades of experience navigating the law to protect his clients from unfair treatment by insurance companies, the government and corporations. He believes that Bigham Law’s purpose is to provide outstanding value to its clients and compassionate service to its community. 

FREE CONSULTATION

This firm gave me my life back. Before Ken and his team I almost gave up hope and caved. He gave me back a chance to finish my schooling, move past what was done to me, and handed back the tools I needed to be a man.

Here I am now a father to a beautiful little girl and building a small business. I can say if I didn’t meet Ken, the story would have been not quite the same. Nothing but love and appreciation from me and my family.

J.S. 2019

Criminal Defense, Facebook Review

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