In the state of Texas, individuals facing assault charges can appeal to the state’s “mutual combat” law as a defense strategy. Now, I need to make it abundantly clear that mutual combat is not a license to assault a person, nor is it a resurrection of dueling or anything like that.
Mutual combat requires that the offense take place under a very specific and limited set of conditions and circumstances. That being said, Texas has made it explicit: there are times when two people may fight, one or both may be accused of assault, and both may have a high chance of their charges being dismissed.
Before we move on, let’s look at an example.
Let’s say you get into an argument with another person at a restaurant or bar. The argument does not cause too much of a stir. The two of you agree to leave the establishment, find a field or parking lot for privacy, and settle the dispute with a fist fight.
You engage in an altercation with the other person. It lasts a few minutes until one or both of you quit. No one is seriously injured (remember this), and both walk away and go home. The dispute is settled.
If the other party were to file an assault charge against you or, by chance, you were reported that night and charged, I’d be comfortable with exploring mutual combat as a defense.
What’s the catch? Mutual combat law has two requirements.
As I alluded to earlier, “mutual combat” is not a term found in Texas law. Rather, it is the title of the Texas Penal Code, Sec. 22.06, that provides the clearest understanding of what lawmakers in Texas mean.
Sec. 22.06. CONSENT AS DEFENSE TO ASSAULTIVE CONDUCT. 8 (a) The victim’s effective consent or the actor’s reasonable belief that the victim consented to the actor’s conduct is a defense to prosecution under Section 22.01 11 (Assault), 22.02 (Aggravated Assault), or 22.05 (Deadly Conduct).
So, if we can establish that you and the person pressing charges agreed to fight or you had every reason to think that they had decided to fight, we are encouraged—I need to repeat this—enthusiastically encouraged to use this defense in court.
Now, a successful mutual combat defense requires all three statements below to be true.
- Both people agreed to fight.
- Neither party suffered serious bodily injury as a result of the fight.
- No weapons were involved.
Problem #1: Establishing consent isn’t always clear-cut.
Consent doesn’t necessarily need to be verbal. However, the accused must have had a good reason to believe there was consent, and this must be based on either verbal consent or demonstrative physical actions that indicate consent.
Problem #2: Serious bodily injury has a strict definition.
According to Texas Penal Code, Section 1.07(46), “serious bodily injury” is “bodily injury that 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.”
There’s some room here for prosecutors. “Serious permanent disfigurement” could conceivably be stretched to include an orbital fracture. A strong blow can impair vision, as we’ve seen in professional contests.
And how might a particular judge on a particular day read “protracted loss”? A broken nose can result in loss of olfactory (smell) function, but it’s not exactly clear if the loss is protracted.
This is why you need to contact our firm immediately. I do not care how gentlemanly the duel or dignified the lady fight, we need to get the facts straight and not have you answering any questions.
Know it: Mutual combat is a defense. That means it happens in court, and that means you’ve been arrested. Call the firm.
Mutual combat is what we call an “affirmative defense.”
Mutual combat defense strategies require admission. You have to own up to the fact that there was a fight, and that admission is what makes mutual combat an affirmative defense.
Affirmation goes like this: I say, “Judge, my client engaged in a fight with the plaintiff, and there is legal justification for the accused’s actions.” Of course, we don’t talk like that in the courtroom, but you get the idea. We acknowledge the action but claim it was legally permissible under the circumstances.
Mutual combat is a viable defense in Texas.
It’s one of two states where that’s the case. (Washington is the other.) A person in Texas charged with assault may argue that the alleged victim consented to fight, meaning the accused can be found not guilty of assault.
A mutual combat defense can lead to more serious charges.
I’m not going to walk clients into a mutual combat defense without due diligence because it requires admission, and there’s no walking that back.
Know it: Once you admit to entering into a fight willingly, you lose the ability to argue that you were only trying to protect yourself.
That can end up being very important if you or the other person involved escalates the fight. If a deadly weapon was used or if someone suffered serious injury during the fight, the charges can go from simple assault to aggravated assault or other felony-level offenses.
Mutual combat can only be used as a defense against charges of assault.
The mutual combat defense is most commonly used against a Class A Misdemeanor Assault charge, which is when “someone intentionally, knowingly, or recklessly causes physical contact with another person.” It can also apply to a Class C Misdemeanor, which involves bodily contact that is offensive but does not cause injury.
Mutual combat is not viable, however, if the accused is charged with aggravated assault, since that involves serious bodily injury.
If mutual combat isn’t viable, there are other options.
Even if you aren’t able to claim mutual combat, you will have other strategies for your defense against assault charges. Depending on your situation, your legal team may want to claim:
- Self-defense
- Defense of others
- Lack of evidence
- Lack of intent
Don’t claim mutual combat at the time of your arrest.
That’s an argument for your lawyer to make in court. When you’re arrested, there’s really only one action you should take: Stay silent. Only speak to invoke your right to contact your lawyer, then wait for them to arrive.
Juries don’t always understand mutual combat.
Since it’s invoked only occasionally, juries and even courts aren’t always fully informed about the workings of mutual combat. In Cotton vs. State, for example, the Texas Court of Criminal Appeals overturned a murder conviction after finding that the jury had been improperly instructed on mutual combat.
It’s important to work with an attorney who has a deep understanding of mutual combat and defense laws, so there aren’t errors during the trial.
Facing an assault charge? Gold Legal Defense can help.
If you’ve been charged with assault in Texas, contact Gold Legal, PLLC.
Whether or not a mutual combat charge is applicable in your situation, we will work to evaluate your options and secure the best possible outcome for you.
Contact us today for a confidential consultation.
— Kandi Gilder, Attorney at Law
