Final Memo for LRW I

MEMORANDUM

TO:  Kim Wexler, Chief Prosecutor, Urbanism Division

FROM:    Rene Schwartz, Legal Research & Writing Student

DATE:  April 12, 2025

RE:   Legal Analysis of Motorist-Cyclist Incident on McAllister Avenue

STATEMENT OF FACTS

On October 14, 2024, five cyclists were riding a designated bike route leading to a protected bike lane. The group was maintaining a staggered single-file formation at approximately 16 mph. The street was lined with parked cars, limiting maneuverability.

Roger Tate was driving a Ford F-150 behind the bicyclists. Witnesses observed him honking aggressively, revving his engine, and tailgating the group. Dashcam footage and witness statements indicate that Tate appeared visibly agitated, gripping the steering wheel tightly and shouting at the cyclists. In a verbal exchange, he yelled, “you people shouldn’t be on the damn road,” and “how about I fix that for you right now?” Lead bicyclist Marcus Bennett told Tate to go around the group, which enraged Tate and he repeatedly swerved toward Bennett, forcing him to adjust his position to avoid contact. Dashcam footage confirmed Tate’s truck came within inches of Bennett’s bicycle multiple times. Bennett reported feeling an immediate sense of fear that Tate was going to strike him.

After this confrontation, Tate accelerated to pass but veered too close to Lisa Caldwell, the third bicyclist in line. His passenger-side mirror struck her left shoulder, causing her to lose control and crash. Caldwell suffered a fractured left wrist, requiring a cast for several weeks.

A witness observed that Tate did not stop but briefly slowed before speeding away. Officers later located Tate at his home. He claimed he “didn’t even know” he had hit anyone because he “would have felt it,” later shrugging, saying if he did, “it was just the mirror,” and suggesting that bicyclists should wear better protective gear if they chose to “hog” the road.

QUESTION PRESENTED

Under Texas law, what are the strongest criminal charges available to prosecute Roger Tate when he drove a pickup truck behind a group of bicyclists while honking, revving, and shouting before repeatedly veering toward Marcus Bennett and forcing him to swerve out of the way multiple times, then accelerating past the group so closely his truck mirror struck Lisa Caldwell, causing her to fall and fracture her wrist?

BRIEF ANSWER

Roger Tate committed two assaults under Texas law: (1) he intentionally threatened Marcus Bennett with imminent bodily injury by repeatedly swerving his truck toward him, forcing him to veer dangerously near the curb and fear being struck or crashing; and (2) he recklessly caused bodily injury to Lisa Caldwell when his mirror struck her shoulder, causing a fall and fractured wrist. Because Tate used a motor vehicle in a manner capable of causing serious bodily injury, both assaults qualify as aggravated assaults with a deadly weapon.

DISCUSSION

The State can likely prove beyond a reasonable doubt Roger Tate’s road rage incident satisfies all required elements for two counts of assault and justifies enhancement to aggravated assault with a deadly weapon under Texas law.

“A person commits an offense only if he voluntarily engages in … an act.” Tex. Penal Code § 6.01(a).

“A person acts intentionally … when it is his conscious objective or desire to engage in the conduct or cause the result; [and a] person acts recklessly … when he is aware of but consciously disregards a substantial and unjustifiable risk.” Tex. Penal Code § 6.03(a)(c).

“A person is criminally responsible if the result would not have occurred but-for his conduct.” Tex. Penal Code § 6.04(a).

“A person commits [assault] if the person … recklessly causes bodily injury to another … or intentionally … threatens another with imminent bodily injury.” Tex. Penal Code § 22.01(a)(1)(2).

“A person commits [aggravated assault] if the person commits assault as defined in § 22.01 and the person … uses or exhibits a deadly weapon during the commission of the assault.” Tex. Penal Code § 22.02(a)(2). “An offense under this section is a felony of the second degree.” Tex. Penal Code § 22.02(b).

“‘Deadly weapon’ means anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Tex. Penal Code § 1.07 (a)(17)(B).

“‘Serious bodily injury’ means bodily injury that creates a substantial risk of death or that causes … impairment of the function of any bodily member.” Tex. Penal Code § 1.07(a)(46).

In Texas, a “person operating a bicycle has the rights and duties applicable to a driver operating a vehicle under this subtitle.” Tex. Transp. Code § 551.101(a).

“[A] person operating a bicycle on a roadway who is moving slower than the other traffic on the roadway shall ride as near as practicable to the right curb or edge of the roadway; unless a condition on or of the roadway, including [parked vehicles] prevents the person from safely riding next to the right curb or edge of the roadway.” Tex. Transp. Code § 551.103(a)(3).

This memorandum analyzes assault charges against Tate based on his actions during the incident. It first outlines the relevant legal standards and then examines each element of assault as applied to the victims, Marcus Bennett and Lisa Caldwell. The first section establishes that Tate’s actions constituted the actus reus element of assault. The second demonstrates that his mental state met the respective mens rea elements for assault against Bennett and Caldwell. The third shows that but-for his actions, the bicyclists would not have been harmed, the causation element required for assault. And the fourth and final section demonstrates how Tate’s use of a motor vehicle during the assaults allows the state to enhance the assault charges into two counts of Aggravated Assault with a Deadly Weapon.

In line with the District Attorney’s priorities — deterring reckless driving, improving public safety, and holding accountable those who endanger vulnerable road users — this case presents a clear opportunity to enforce accountability and prevent future violations by prosecuting Tate to the fullest extent of the law.

1. Did Tate’s actions amount to an assault?

Tate’s actions satisfy the actus reus of assault for both victims because he aggressively yelled at and swerved toward Bennett, and Tate’s passing maneuver caused actual bodily injury to Caldwell.

Under Texas law, assault occurs when a person intentionally threatens another with imminent bodily injury or recklessly causes bodily injury. Tex. Penal Code § 22.01(a)(1)(2).

In Smith v. State, Brandon Smith became enraged and used his truck to pursue and ram two men who intervened to protect a woman he was punching. 316 S.W.3d 688, 692 (Tex. App.—Fort Worth 2010, pet. ref'd). Smith got in his truck and attempted to run over Randy Osburg and his son Gary. Id. The Osburgs fled in their vehicle and attempted evasive maneuvers, fearing for their lives, but Smith chased them and rammed into their car multiple times. Id. at 692, 693. A jury found Smith guilty of two counts of Aggravated Assault with a Deadly Weapon. Id. at 697.

Tate’s actions mirror those taken by Smith and thus satisfy the actus reus element of assault. Like Smith chased and tailgated the Osburgs, Tate tailgated the bicyclists and swerved toward Bennett multiple times causing him to make evasive maneuvers to avoid being struck. Contrasting Smith, Tate did not physically strike or “ram” Bennett’s “vehicle,” but because Bennett was riding a bicycle — unprotected and unable to flee — he was just as vulnerable as the Osburgs when they were on foot at the start of their encounter with Smith.

Tate’s actions also satisfy the actus reus element of assault against Caldwell because his conduct resulted in her actual bodily injury. Caldwell did not perceive an imminent threat like Bennett and the Osburgs, but Tate’s truck mirror nevertheless struck her shoulder as he actively accelerated, the impact of which caused her to fall and suffer a fractured wrist.

Because his actions made Bennett fear bodily injury and his reckless driving directly resulted in physical harm to Caldwell, Tate’s actions satisfy the actus reus element of assault on both counts.

2. Did Tate Act Intentionally and Recklessly?

Tate’s mental state meets the required mens rea requirement for assault because he acted intentionally when he shouted at and swerved toward Bennett, and recklessly when he incidentally struck Caldwell.

A person acts intentionally when their conscious objective is to engage in certain conduct, and acts recklessly when they are aware of but consciously disregard a substantial and unjustifiable risk. Tex. Penal Code § 6.03(a)(c).

In In re J.A.B., the court held that the defendant (pseudonym J.A.B.) acted intentionally when she drove into a group of pedestrians. 440 S.W.3d 818, 820 (Tex. App.—El Paso 2013, no pet.). Witnesses testified J.A.B. was driving fast on a crowded street, ignored a stop sign, and accelerated, before striking multiple people in her path without slowing down. Id. at 819, 821. After the incident, the defendant and her passenger discussed returning but chose to keep driving — indicating conscious awareness her actions were likely to cause bodily harm, yet disregard for the substantial and unjustifiable risk. Id. at 819, 825.

Like J.A.B. accelerated toward a group of people on a crowded street who wouldn’t move out of the way after she honked at them, Tate honked at and threatened a group of bicyclists who were in his way about "fixing" the situation (of blocking his path), before speeding up and veering toward Bennett, scaring him. Tate’s aggressive swerving toward Bennett demonstrates that he intended to cause him fear. Witnesses corroborated Tate’s visible agitation and aggressive driving, which supports the conclusion that his assault on Bennett was no accident, but rather Tate acted with the necessary mental state for intentional assault.

Tate also acted recklessly toward Caldwell when he veered too close to her. Like J.A.B. who accelerated and struck multiple people on a crowded street without slowing down, Tate accelerated past the bicyclists while disregarding the substantial risk of hitting someone — and then hit Caldwell. Tate’s awareness of the contact was evident as witnesses say he slowed down momentarily after striking Caldwell before driving off. This mirrors J.A.B. who discussed with her passenger whether they should return to the scene, before consciously deciding against. Tate’s statement that he “didn’t even know” he had hit anyone because he “would have felt it,” before later shrugging and stating if he did, “it was just the mirror,” and suggesting that bicyclists should wear better protective gear if they chose to “hog” the road, further contribute to his awareness and conscious disregard of the substantial risk to the bicyclists.

Because his actions demonstrate his intent to threaten Bennett to make him fear bodily injury and reckless disregard for Caldwell’s safety when he hit her, Tate’s mental state satisfies the mens rea of assault on both counts.

3. But-For Tate’s conduct, would the bicyclists be harmed?

Tate’s conduct satisfies the causation element of assault because but-for his yelling, honking, revving, and reckless driving maneuvers, Bennett would not have feared imminent harm and Caldwell would not have been injured.

In Texas, a person is criminally responsible for assault when “but-for” his conduct, the prohibited result would not have occurred. Tex. Penal Code § 6.04(a).

In Smith, the defendant repeatedly drove his truck at Randy and Gary Osburg — both on foot and while they fled by vehicle — striking their car at high speeds as they tried to escape. 316 S.W.3d at 692. Randy said he was afraid of being killed or severely injured when Smith accelerated toward him in a parking lot, prompting him to jump into his truck bed. Id. Similarly, Gary said he feared Smith was trying to kill him when he saw the truck speeding toward him. Id. at 695. Smith then engaged in a high-speed chase, ramming their vehicle multiple times. Id. at 693. The court held Smith’s reckless pursuit directly caused the victims’ terror. Id. at 696.

Like Smith’s enraged pursuit and repeated ramming of the victims’ vehicle directly caused their fear, Tate’s similar hostile honking, revving, shouting, and swerving at Bennett created fear of imminent bodily injury. Witnesses described Tate’s red face and white-knuckled grip as he honked aggressively, revved his engine, and tailgated the group, which alarmed Bennett who gestured for Tate to pass. Instead of doing so, Tate swerved toward Bennett, forcing him to take dangerous, evasive action.

Unlike the victims in Smith who escaped the defendant’s reckless pursuit before suffering physical harm, here, Tate’s reckless acceleration maneuver caused the truck mirror to strike Caldwell’s shoulder, making her fall and fracture her wrist. Just as Smith involved a driver closing distance to intimidate his victims, Tate inched dangerously close to the bicyclists before striking Caldwell.

Tate’s conduct satisfies the causation element of assault because but-for his yelling, honking, revving, and reckless driving maneuvers, Bennett would not have feared imminent harm and Caldwell would not have been injured.

4. Aggravated Assault with a Deadly Weapon

Because Tate used his vehicle recklessly and in a manner capable of causing death or serious bodily injury, his assault charges can be enhanced to two counts of Aggravated Assault with a Deadly Weapon.

To obtain an Aggravated Assault with a Deadly Weapon finding in Texas, the State must show that the defendant used a motor vehicle during the commission of an assault in a manner capable of causing death or serious bodily injury. Tex. Penal Code § 22.02(a)(2); Tex. Penal Code § 1.07(a)(17)(B). “Serious bodily injury” includes impaired function of any bodily member. Tex. Penal Code § 1.07(a)(46).

In Dolkart v. State, Jane Dolkart honked, yelled at, and tailgated two bicyclists, Thomas and Schoenberg, making them uncomfortable. 197 S.W.3d 887, 889 (Tex. App.—Dallas 2006, pet. ref'd). Rather than go around them, Dolkart followed the bicyclists to the end of the block where they made a U-turn, and she followed closely behind. Id. Thomas slowed to a "rolling stop" to indicate to Dolkart that she should pass the bicyclists, but this enraged her. Id. Dolkart screamed loudly and accelerated toward Thomas, hitting and dragging him and his bicycle, causing contusions and abrasions to his left shoulder and elbow. Id. at 889, 890. When confronted about her actions, Dolkart told a police officer she “only meant to tap him,” and blamed the bicyclists for precipitating the incident. Id. at 890. The jury determined Dolkart used her car as a deadly weapon. Id. (Note: Dolkart was convicted of Aggravated Assault with a Deadly Weapon, which was reversed and remanded by the appellate court; the reversal was based on a procedural issue, not the underlying merits of the case as it relates to the facts of our case.)

Here, Tate’s use of a motor vehicle as a deadly weapon mirrors the reckless and threatening conduct seen in Dolkart. Like Dolkart harassed the bicyclists with her vehicle, Tate used his truck as an instrument of intimidation and immediate risk of harm (both drivers honked, tailgated, yelled, swerved, accelerated, and caused fear of imminent bodily harm and actual bodily injury). In Dolkart, Thomas motioned for Dolkart to safely pass just like Bennett told Tate to go around — yet in both cases, this enraged the drivers causing them to escalate their conduct from tailgating, honking, and shouting, to using their vehicles as deadly weapons, resulting in Caldwell’s and Thomas’ injuries, and Bennett’s fear. Notably, Thomas was left with some scratches and bruises from the Dolkart incident, whereas Caldwell suffered a “serious bodily injury,” a fractured wrist requiring immobilization in a cast that impaired the normal function of her arm and hand. Because Caldwell’s injuries were more severe than Thomas’, it’s even more likely that Tate is guilty of Aggravated Assault with a Deadly Weapon under Dolkart.

Tate might argue that the bicyclists were the ones behaving recklessly by “unlawfully” blocking the flow of traffic or failing to stay as close as practicable to the right curb, as required by Tex. Transp. Code § 551.103(a)(3). Theoretically, if the bicyclists were impeding traffic by riding too far into the lane, rather than keeping to the right when safe, their actions could have contributed to a dangerous situation. Like Dolkart, Tate might claim that his driving was not the primary cause of the incident, but rather a reaction to the unpredictable and hazardous positioning of the bicyclists on the road. This argument could be framed to shift blame onto the bicyclists, portraying them as negligent road users who created an unsafe environment for themselves and others.

Any argument Tate might make to this effect would misinterpret the law and ignore critical exceptions outlined in Tex. Transp. Code § 551.103(a)(3). The statute explicitly states that bicyclists must ride near the right curb unless a condition on or of the roadway prevents them from safely doing so —including parked vehicles. Here, there were parked cars lining the road, so the bicyclists were legally permitted to ride farther into the lane for safety reasons. Furthermore, under Tex. Transp. Code § 551.101(a), bicyclists have the same rights and duties as other vehicle operators, meaning drivers like Tate must respect their legal right to the roadway and adjust their own driving accordingly. And lastly, there were many witnesses who observed the situation and dashcams that captured the scene, all of which directly point to the bicyclists acting lawfully and Tate being the aggressor.

Because Tate used his vehicle recklessly and in a manner capable of causing death or serious bodily injury, his assault charges should be enhanced to two counts of Aggravated Assault with a Deadly Weapon.

FINAL CONCLUSION

Because Tate’s conduct during the October 14, 2024, incident support the theory Tate intentionally caused one victim to fear imminent bodily injury and recklessly caused actual bodily injury to another, but-for his conduct, neither victim would have been harmed, and he used his truck as a deadly weapon to that prohibited end, the Harris County District Attorney’s should prosecute Roger Tate for two counts of Aggravated Assault with a Deadly Weapon, which carry the harshest penalty available under Texas law. Doing so not only aligns with the District Attorney’s focus on deterring reckless driving, improving public safety, and promoting accountability for behavior that endangers vulnerable road users, it also sends a strong message that violence against cyclists will not be tolerated in Harris County. 

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