Last week, Josh Hamilton was indicted by a grand jury on the charge of felony injury to a child. The former Texas Ranger outfielder had been arrested in late October, 2019, for felony injury to a child, and this indictment was related to the same episode.
I’m a lawyer but I don’t really know criminal law, and I was curious about how this process works and what happens with Hamilton now, so I talked to my friend Joe Vinas. Joe is a former Harris County prosecutor who now practices criminal defense with the Houston firm of Vinas & Graham. He and I went to law school together, so I figured he wouldn’t mind me pestering him with some questions about this.
Our discussion ended up getting into the weeds a bit on criminal law and how the process works, which means that its longer than I expected, so I’m breaking it up into multiple parts.
What follows is Part I of a a lightly edited Q&A I did with Joe on the subject:
AJM: Josh Hamilton has been charged with felony injury to a child. Is that what we colloquially call “child abuse”?
Vinas: It covers child physical abuse. The term “child abuse” encompasses physical abuse and sexual abuse. When you’re talking about physical abuse in Texas, the charge that we have is “injury to a child.”
AJM: What sort of range of behaviors or actions could be encompassed in a felony injury to a child charge?
Vinas: Injury to a child is a “Class A Misdemeanor Assault” where you cause bodily injuries to a child under the age of 15. So he’s accused, I believe, of slapping his daughter, who is younger than 15. Had she been 15 or older, it would have been a Class A Misdemeanor Assault case, punished by up to a year in county, and up to a $4000 fine. But because she is under that threshold age, it becomes a third degree felony, with a minimum of two years and a maximum of ten years in the Texas State Prison System, and an optional fine of up to $10,000. So had she been older, this would have been a misdemeanor charge — probably an assault of a family member charge — but because she’s under the age of 15 its a felony charge.
As far as what behaviors would statutorily fit under the definition, it could be anything as minor as a push. It could be a hit, a slap, a punch, a kick — anything that causes bodily injury. In Texas, the definition of bodily injury includes any kind of physical ailment or as low a threshold as physical pain. So as long as you make contact with somebody — physically, knowingly, or sometimes recklessly, hit somebody, or push somebody to the ground, and they feel physical pain, they don’t have to have bruising, they don’t have to have cuts, they don’t have to have any physical marks. If there’s physical pain, then you’ve met the definition of “bodily injury,” which is the minimum injury required for injury to a child.
AJM: Josh Hamilton was indicted earlier this month — for those of us who don’t practice criminal law, what is an indictment?
Vinas: An indictment sounds a lot bigger than it really is. Texas is one of many states where a suspect is entitled to have their case heard before a grand jury if we are charged with a felony offense. What that process looks like is different in every venue, in every county, and really, in every case. In Texas, every three months there is a grand jury sitting in every jurisdiction in the state. Tarrant County, I imagine, has multiple grand juries sitting at a time. Here in Houston, we have five at any given time, and they alternate days.
When an indictment is sought, a prosecutor goes into a room with a minimum of nine and a maximum of twelve grand jurors — they have twelve on the grand jury, but in order to have a quorum, at least nine have to actually show up on any given day. So if nine people are there, you can proceed.
The threshold at this stage is just probable cause — in other words, the same legal threshold to issue an arrest warrant for someone is the threshhold that must be met for a grand jury to issue an indictment.
A grand jury indictment is a formal finding of probable cause by a group of nine to twelve citizens who hear the prosecutor’s version of what happened. A defense lawyer is never allowed in a grand jury proceeding in Texas, and a defendant is only allowed in a grand jury proceeding during their own testimony. A defendant cannot hear any of the evidence presented against them. And a defendant only testifies if they want to — a defendant still has their Fifth Amendment right against self-incrimination. But a defendant doesn’t have the absolute right to testify in this proceeding — if a grand jury doesn’t want to hear from them, they don’t get to testify.
In Texas, grand jury proceedings are totally confidential and secret — the grand jurors and the prosecutor are not allowed to say what happened when they were in the grand jury room. In fact, the prosecutor is not even allowed to be in there during the deliberation process — they can only be in there during the evidence presentation process. So we don’t know what exactly happened in the proceeding in Hamilton’s case, but normally, in a case like this, the prosecutor goes in, reads some information from the police report, maybe plays a 911 recording, maybe shows some photos, maybe some video — it depends on what evidence there is and the format it is in.
But really, all the prosecutor has to do is give their version of the evidence, and then they leave the room. Then the grand jurors deliberate amongst themselves, and if nine of the twelve find that there is probable cause, they have indicted the defendant.
AJM: So in Texas, does every felony charge have to come from a grand jury?
Vinas: The basic process is, typically somebody is arrested, and the case is assigned to a district court, which are the courts that have jurisdiction over felony cases in Texas. At that point, if the defendant is out on bond, the State has 180 days to secure an indictment from a grand jury against the defendant, and if they don’t, they have to dismiss the case. The caveat to that is, so long as the statute of limitations hasn’t run, they can re-file the case without double jeopardy attaching.
If the defendant is in custody and can’t make bond, the State has 90 days to get him indicted, or, basically, the defendant gets released. That’s something of an oversimplification of the process, but he basically gets released.
So in every felony case in Texas, the defendant has the right to have his case heard before a grand jury to see if they are going to indict him, or if they are going to issue what is known as a “non-bill,” which means that the grand jury has decided not to indict him. The only time the State can proceed without a grand jury indictment is if the defendant has waived indictment. That said, in eighteen years, I’ve never seen a defendant waive indictment and go to trial without an indictment. Typically a defendant only waives indictment when they’ve reached a plea agreement with the State and are pleading guilty in exchange for probation, or less prison time, or a lesser charge, or something along those lines.
AJM: This is one of the issues I’ve been confused about — he was indicted a few weeks ago, but was arrested in October, 2019, and it seems in my non-criminal-lawyer mind you should get arrested after you get indicted. But you’re saying that’s not the case.
Vinas: Almost always, in the State of Texas, a person is arrested before a case is presented to a grand jury. Now, there are situations where a grand jury launches the investigation — its not the prosecutor, its not the police, its the grand jury that opens the investigation. And a grand jury has the power to do that — a person can decide that they think their neighbor is committing mortgage fraud, and write a letter to the grand jury, and the grand jury can launch an investigation. Sometimes when the State is investigating something or presenting something to a grand jury, the grand jury may say, hey, wait a minute, there’s more issues being revealed here that aren’t before us, and so we want to take a look at that, the grand jury has the power to do so.
But that’s pretty rare. Most grand juries will serve their entire term and never launch their own investigation on anything.
There was a very high-ranking judicial official several years ago who found himself the target of a grand jury investigation. The prosecutor disagreed with it — this was back in the mid-aughts, I think — but the grand jury indicted anyway, and then the prosecutor dismissed it the next day. This was in Houston.
So a grand jury indictment and an arrest aren’t necessarily linked in time. But in the vast, vast majority of cases, a person is arrested, and then is in custody or out on bond before a grand jury makes an indictment in their case.