Kelly Gage grabbed headlines on Thanksgiving of 2011. His wife Patti McHugh was beaten so badly she had to go to the hospital and died a few days later.
Gage is not facing murder charges but he is awaiting trial for the alleged beating and he could face life in prison.
The problem for Gage is that he beat his wife at least once before that and he got convicted. But the conviction was in Washington state. Differences in the laws here and there could mean a jury never gets to hear that he's done it before.
"Washington State does not have a definition of what an assault is," Smith County Assistant District Attorney Mike West said. "Rather, they rely on a common law definition of an assault."
Shackled and in an orange jumpsuit, Kelly Gage asked a judge to throw out his previous assault conviction Thursday--a 2010 guilty plea to physically pushing McHugh.
Texas law allows a criminal's past to increase the severity of a new crime but when the old conviction is from out of state a texas judge has to decide whether it's valid here.
"The underlying facts in the Washington case were the defendant assaulted the victim, Patti [McHugh] Gage," West said. "And in Washington that was treated as a fourth degree assault and under Texas law that would be similar to a Class-A misdemeanor."
West said there's no question that Gage would have been guilty if the same incident happened here. But defense attorney Reeve Jackson said the Washington law allows for the possibility of criminally negligent assault, meaning there's no intent. The implication was that Gage's crime in Washington would have been unproveable in Texas.
"And I compare this to our statute of assault by threat where you have to have an intentional act," Jackson said. "You have to intend to put that person in harm."
Prosecutors argued that case law in Washington establishes an implied intent to the state's definition.
Judge Kerry Russell will have to decide whether that's true. But he was quick to point out that the information gage pleaded guilty to explicitly called the assault intentional.
"Paragraph 7 on that same page has the defendant pleading guilty to the charge as charged in the complaint," Russell said.
Gage's plea from Washington admitted that he pushed his wife. Judge Russell told the defense he's not sure how someone would unintentionally push someone. Russell's decision on whether to throw out the previous assault conviction will come soon.
Gage has two additional felony convictions in his past. Those two are not in dispute, but if the previous assault gets thrown out, the most Gage could spend in prison would be one year.