Are you speaking legally or based on a definition of those terms?
I think there's a 99.99% chance Smart will never be convicted of either of those, let alone even charged. Which begs the question, if he's not even charged with battery or assault, did he then, in fact, commit battery or assault?
I speaking from first hand familarity with the the two terms having been through three criminal acitons on the subject in three different states including Texas where I once lived. As I'm aware the statutes differ from state to state, I read the Texas statute and read a couple of articles describing the situations, degrees, and penatlies in Texas prior to posting.
I agree there's a small chance of a conviction as I doubt anyone issues a complaint. He's gotten a 3 day suspension from the commissioner so it's apparent he did something wrong.
The video at CBS that shows the context better than the shorter one posted earlier today. I posted the link below. This video shows the play which took him off the court. It shows him going down and shows people is dark golf shirts putting out there hands to catch him/protect themselves. After he gets up and he starts to walk away, he turns around and goes back after Orr. When he strikes Orr with a two arm motion similar to a chest pass it's not clear to me whether he made contact with either of the women next to and partially in front of Orr. If he made contact OR if they felt threatened or intimidated they can swear out a complaint as well as Orr. Then Smart walks back on the court and while being restrained by a teammate makes a threatening gesture while mouthing something that from his facial expression probably wasn't "Have a nice day."
<iframe width="640" height="360" src="//www.youtube.com/embed/gSGUudvIP_g?feature=player_embedded" frameborder="0" allowfullscreen></iframe>
I think the nature of the contact is relevant. If Smart had Jayru Camplell-ed the fan, I think there would be certain unanimous backing for season-long/career-long suspension, as well as legal action (well, I'm sure there would be some who may believe Smart is the victim of fetal alcohol syndrome and he, himself, is a victim...but I digress.). But say (and just go with me here), he walked up to a fan and literally barely grazed him with one finger, then he should have the book thrown at him as well? Players interact and touch fans all the time-- this is an undeniable fact. Players dive for loose balls into the stands, players high-five fans, players excrete bodily fluids on fans, etc. Some sort of distinction has to be made, so I think the nature of contact is relevant.
The nature fo the contact is relevant but it far from the "barely grazed him with one finger" you mischaracterize. Smart reared back and pushed out with both hands clearly knocking Orr off balance, back against his seat. A&B does not require that you cold cock the other person. You don't even have to strike a blow. It's based on contact without permission. There are different degrees of A&B ranging from a minor misdemeanor to a major felony .
Orr and any others involved could file criminal chargers or a civil suit. Again, I doubt they do.
Personally I don't recall having ever heard of Smart or Orr before this morning. I don't know why you raised the fetal alcohol syndrome red herring. I've commented on the actions in the video and the Texas statutes.
Oh and you may chose to look up "Beg the question", it's one of the most misunderstood and commonly misused expressions. I had a judge explain it to me untowardly while I was under oath giving expert testimony. You meant it raises a followup question while in logic it means a proposition that requires proof was assumed without the proof.
The video is proof of the contact. Prosecutors love UTube videos (and facebook, Instagram, twitter, ...). It makes things so much clearer to a judge or jury.
