(Image via Joshua Bessex/Getty Images)
Per the Dallas Police Department, Buffalo Bills Defensive End Von Miller has an arrest warrant active against him for allegedly assaulting a pregnant person. According to the police report, Miller and the alleged victim got into a verbal argument that turned physical when Mr. Miller allegedly assaulting the victim. The allegations according to the Dallas Morning News is Mr. Miller grabbed the alleged victim by the throat and shoved her. For the record, I prosecuted close to 1,000 domestic violence cases while I was a misdemeanor and felony prosecutor for over 3 years. I have also defended client(s) against this very charge. What does this charge legally mean to Von Miller?
First, in the State of Texas, Assault is defined as the following: Texas Penal Code: Section 22.01 Assault (a) a person commits an offense if the person:
1) Intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse.
2) Intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse.
3) 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 practice.
Assault is usually a Class A misdemeanor but if the alleged offender knew the alleged victim was pregnant at the time, the charge becomes a 3rd-degree felony. A 3rd-degree felony is punishable by no less than 2 years and no more than 10 years. Additionally, the Dallas Police may have enough to arrest Mr. Miller but a grand jury needs to agree with the charge. That is because in the State of Texas, all felonies must be charged by grand jury. That means the police will arrest Mr. Miller, but they need a grand jury to agree with them in order to formally charge Mr. Miller. As we saw in the Deshaun Watson case, grand jury indictments are not automatic. The District Attorney’s Office, if they wish, could simply charge Mr. Miller with assault, which would allow them to bypass the grand jury proceedings.
Whether this case is formally charged will depend on victim cooperation and corroborating evidence. Alleged domestic violence cases can change on a dime. The reason is that how an alleged victim feels one day may change the next. I expect the alleged victim to meet with the District Attorney’s Office to discuss this matter. She very well may change her tune when she inevitably asks the prosecutor, “What is he looking at?” The prosecutor’s response would likely be, “Potential prison time as the sentencing guidelines call for prison time”. For which, I expect her to respond, “I do not want him to go to jail/prison. I just want him to get help.” I personally was told that almost every single time I interviewed an alleged domestic violence victim. If the victim doesn’t agree with how the prosecutor wishes to proceed, I don’t expect her to testify in front of the grand jury. Without a cooperating victim, this matter would depend on corroborating and/or on independent evidence. Were there any independent witnesses present when this alleged incident occurred? If so, I would expect the case to be formally charged. Is there a 911 call where there could be excited utterances? Excited utterances are an exception to the hearsay rule and victim unavailability is immaterial (there are hearsay exceptions where victim unavailability is required). Did the alleged victim make any statements while under the stress of the situation to law enforcement? Did law enforcement observe any injuries on the alleged victim? All of that will go towards whether or not Von Miller is formally charged with assault on a pregnant person.
My read on the situation is this: If the alleged victim is cooperative, I think it would be difficult for Mr. Miller to dodge the indictment. Whether he is actually convicted is still a very long way away. We shall see.
Matthew F. Tympanick, Esq. is the Founder/Principal of Tympanick Law, P.A., located in Sarasota, Florida where he focuses his practice on Criminal Defense, Personal Injury Law, and Sports Law. Arrested or Injured? Don’t Panic…Call Tympanick! 1(888)NOPANIC. He is a graduate of the University of Massachusetts School of Law where he served as a Public Interest Fellow and a Staff Editor on the UMass Law Review. He has appeared nationally on television, radio, and podcasts discussing criminal cases specifically sports criminal cases. He was previously a felony prosecutor where he prosecuted thousands of misdemeanor and felony criminal cases. He also has tried over 40 jury and non-jury cases. You can follow him on Twitter, Instagram, and Facebook @TympanickLaw.
