DOMESTIC VIOLENCE DEFENSE LAWYER, Houston, TX

WHAT IS considered Domestic Violence Under Texas Law?

Domestic violence cases involving assault and aggravated assault are referred to as “Assault — Family Member” in Texas. The offense of Assault – Family Member is codified in two different Texas statutes. The offense of Assault, in all its forms, is codified under Chapter 22 of the Texas Penal Code and Chapter 71 of the Texas Family Code defines the relevant elements. Section 71.004 of the Texas Family Code defines “Family Violence” as “an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault.” Family Violence also includes “Dating Violence,” which is defined as “an act by an alleged offender that is committed against an alleged victim (1) with whom the alleged offender has or has had a dating relationship; or (2) because of the alleged victim’s marriage to or dating relationship with an individual with whom the alleged offender is or has been in a dating relationship or marriage.”

WHO IS CONSIDERED A FAMILY MEMBER?

As you can see from the definitions above, a family member can be anyone to whom you are related by marriage or consanguinity (blood) or who is or was a member of your household or with whom you have or had a dating relationship.

The most common members of a family include:

  • Current or former spouse or domestic partner
  • Children and stepchildren
  • Siblings
  • Persons in a dating relationship
  • Grandparents
  • Aunts and uncles
  • Roommates (this one always surprises folks)

MOST COMMONLY FILED TEXAS DOMESTIC VIOLENCE CRIMES

  • Assault – Texas Penal Code §22.01
  • Aggravated Assault – Texas Penal Code §22.02
  • Sexual Assault – Texas Penal Code §22.011
  • Aggravated Sexual Assault – Texas Penal Code §22.021
  • Terroristic Threat – Texas Penal Code §22.07
  • Harassment – Texas Penal Code §42.07
  • Stalking – Texas Penal Code §42.072
  • Continuous Violence Against the Family – Texas Penal Code §25.11
  • Violation of a Protective Order – Texas Penal Code §25.07

DOMESTIC VIOLENCE IN TEXAS

Assault – Family Member cases are treated very seriously by law enforcement, prosecutors and lawmakers in Texas. Many local law enforcement agencies have domestic violence divisions that handle nothing but Assault – Family Member cases. The Harris County District Attorney’s Office has a special division called the Family Criminal Law Division staffed with prosecutors and case workers and is dedicated solely to prosecuting domestic violence cases between romantic partners. In short, if you are charged with Assault – Family Member, you have a serious fight on your hands. Take a look at these statistics from The National Coalition Against Domestic Violence reported the following family violence statistics for Texas in 2016:

DOMESTIC VIOLENCE IN TEXAS

  • In 2013, there were 76,704 reported victims of abuse by current or former spouses. Many others went unreported. This statistic excludes reported abuse between non-married intimate partners.
  • In 2014, Texas domestic violence hotlines answered 185,373 calls.
  • In 2012, 114 Texas women were killed by intimate partners, more than 10% of the national total.
  • 75% of Texas 16-24-year-olds have either experienced dating violence or know another young person who has.
  • In 2013, 31% of victims/survivors of domestic violence requesting shelter were turned away due lack of resources.

DID YOU KNOW?

  • 1 in 3 women and 1 in 4 men in the United States have experienced some form of physical violence by an intimate partner.
  • On a typical day, domestic violence hotlines receive approximately 21,000 calls, an average of close to 15 calls every minute.
  • Intimate partner violence accounts for 15% of all violent crime.
  • The presence of a gun in the home during a domestic violence incident increases the risk of homicide by at least 500%.
  • 72% of all murder-suicides involved an intimate partner; 94% of the victims of these crimes are female.

Source: http://ncadv.org/files/Texas.pdf

ARREST

These statistics tell you everything you need to know about how law enforcement and prosecutors will view your case if you are charged with family violence. Texas law authorizes the police to make an arrest without a warrant of “persons who the peace officer has probable cause to believe have committed an assault resulting in bodily injury to a member of the person’s family or household.” Texas Code of Criminal Procedure Article 14.03 (a) (4). If police go out on a domestic violence call, somebody is going to jail whether there is credible evidence or not. Why? Because no police officer is going to take a chance that a domestic violence complainant ends up in the hospital or the morgue because they didn’t make an arrest (refer to the NCADV statistics above). Unfortunately, because police officers are willing to “let the courts figure it out,” a mere accusation is sufficient for an arrest. As a result, many of these cases are not properly investigated. Police often fail to determine who is the real aggressor, they fail to photograph the alleged victim for visible injuries or the lack of injuries and they often fail to get the accused’s side of the story. The lack of a diligent investigation can lead to a number of mistakes.

FALSE ALLEGATIONS

Sadly, domestic violence is the one area of law that is most prone to false accusations. It is very common for a spouse or domestic partner to make an accusation of family violence to gain advantage in a pending divorce or child custody battle. It is also common for someone who is on parole or probation or who has been previously charged or convicted of family violence to be falsely accused of family violence by an angry spouse or domestic partner intent on revenge because they know that a person in that situation will almost certainly be arrested and charged. Anger, spite and vengeance for perceived or actual transgressions are strong motivators for false allegations.

BOND AND PROTECTIVE ORDERS

If you are arrested for domestic violence in Harris County, the prosecutor will request you be held at No Bond until the magistrate or the judge in your case signs a Magistrate’s Order for Emergency Protection, commonly referred to as a MOEP. The purpose of the order is to bar the accused from having any harassing, or threatening communication with, stalking or committing another act of family violence against the alleged complainant and imposes a distance restriction where the accused may not come within 200 feet of the alleged complainant’s home and place of employment. The MOEP expires in 61 days in a simple assault and in 91 days if a deadly weapon was used in the offense. Any violation of the order by the accused can result in a separate criminal offense known as Violation of a Protective Order. In addition to a MOEP, the judge can also issue a No Contact Order, which bars the accused from having any contact with the alleged complainant for as long as the case is pending. What does this mean for you if you’re charged with domestic violence? It means that you will likely be barred from living in your own home and not have any contact with your family for months.

CONSEQUENCES OF DOMESTIC VIOLENCE CONVICTION

If you are convicted of domestic violence, receive a probated sentence, deferred sentence, deferred adjudication, or any form of plea bargain pursuant to a guilty plea or no contest plea will result in a permanent criminal record. Under any of these circumstances, domestic violence criminal records cannot be expunged (a court order that orders the district attorney’s office, district clerk, county sheriff, arresting agency, DPS and any other Texas state agency that maintains records of your arrest and charge to destroy all those records). There is no provision under Texas law to expunge, destroy, or seal domestic violence convictions, probations, or deferred adjudications. See Texas Government Code Section 411.081. In Texas, there are only three ways to remove a domestic violence arrest record; 1) The records of arrest can be expunged if the state never files a case; 2) if the case is a felony and the grand jury declines to indict (called No Bill in Texas); or 3) if you are found not guilty at trial.

Domestic violence allegations and convictions not only carry with them a negative social stigma but can have a devastating affect on many aspects of your life, including employment, professional licensing, child custody, the right to possess a firearm, loss of security clearance or the inability to obtain security clearance and the ability to rent an apartment or home.

Domestic violence can be considered a crime of moral turpitude (conduct that is considered contrary to community standards of justice, honesty or good morals) under Texas and federal law, especially when the accusation concerns a male on female assault. A person charged with domestic violence who is not a United States citizen can face serious immigration consequences. Under federal law, a guilty plea that results in a deferred adjudication is considered a conviction, which can result in deportation, denial of re-entry into the United States and denial of naturalization.

WHAT HAPPENS IF THE COMPLAINANT WANTS TO “DROP CHARGES” OR REFUSES TO TESTIFY?

It is very common for complainants in domestic violence cases to want to “drop charges.” Some complainants even decline to press charges after police are dispatched to the scene of a domestic violence call. However, Texas law gives police officers authority to arrest a person accused of domestic violence even if the complainant does not want to press charges so long as they have probable cause to believe the offense occurred. Texas Code of Criminal Procedure Article 14.03 (a) (4).

Clients and complainants often ask if the DA will dismiss the case if the complainant files an Affidavit of Non-Prosecution, a legal document signed and sworn to by the complainant that states the complainant does not wish to pursue charges against the defendant. The Affidavit is then presented to the prosecutor. Quite simply, this document has no legal effect. The prosecutor has the legal authority to prosecute the accused despite the complainant’s wishes to the contrary. As a matter of fact (and law), a criminal charge may only be dismissed upon the prosecutor’s motion. The case belongs to the prosecutor and no complainant, no lawyer and no judge has the authority to make the prosecutor dismiss its case.

Another common question is if the DA will dismiss the case if the complainant refuses to appear at trial. This is a loaded question because there are some potentially serious consequences if the defendant causes the complainant’s absence at trial in any way. If the defendant personally or through a third party asks the complainant to not testify or threatens the complainant if he or she testifies or takes any other action to prevent the complainant’s appearance at trial, the defendant can be charged with the third degree felony offense of Tampering With a Witness, which is punishable by 2 years to 10 years in prison and up to a $10,000 fine. Under the doctrine of “Forfeiture by Wrongdoing” this conduct may also cause you the defendant to lose his Sixth Amendment right to confront the witness against him and permit the State to admit the complainant’s previous “testimonial” statements against him that would otherwise be inadmissible at trial if the Court finds the complainant’s absence was caused by the defendant’s conduct.

Another common question is whether the complainant has the right to refuse to testify. Generally, the complainant has no constitutional right to refuse to testify. There is no marital exception in domestic violence cases so the Court can compel the complainant to testify against the defendant spouse. The Court can hold a complainant in contempt for refusing to testify at trial. If the complainant does not appear for trial as ordered by subpoena, the DA can ask the Court to issue a Writ of Attachment under Article 24.11 of the Texas Code of Criminal Procedure, which “command[s] some peace officer to take the body of a witness and bring him before such court … to testify in behalf of the State or of the defendant, as the case may be.” The only circumstance under which a complainant can refuse to testify is if they have committed a crime and testifying would violate their Fifth Amendment right. This, however, is the rare circumstance.

PUNISHMENT RANGES FOR ASSAULT – FAMILY MEMBER

  • Class A Misdemeanor — up to 1 year in jail and up to a $4,000 fine.
  • Third Degree Felony (Assault – Family Member 2nd offender and Assault – Family Member by Impeding Breathing or Circulation (“Choking”)) — 2 years to 10 years in prison and up to a $10,000 fine.
    – If defendant was previously convicted of one third degree felony or higher (any criminal offense, does not have to be domestic violence), the punishment range increases to a second degree felony, which is 2 years to 20 years in prison and up to a $10,000 fine.
    – If defendant was previously convicted of two third degree felonies or higher(any criminal offense, does not have to be domestic violence), the punishment range increases to a first degree felony, Habitual Offender, which is 25 years to 99 years or Life in prison and up to a $10,000 fine.
  • Second Degree Felony — 2 years to 20 years in prison and up to a $10,000 fine.
    – If defendant was previously convicted of one third degree felony or higher (any criminal offense, does not have to be domestic violence), the punishment range increases to a first degree felony, which is 5 years to 99 years or Life in prison and up to a $10,000 fine.
    – If defendant was previously convicted of two third degree felonies or higher(any criminal offense, does not have to be domestic violence), the punishment range increases to a first degree felony, Habitual Offender, which is 25 years to 99 years or Life in prison and up to a $10,000 fine.
    – Second Degree Assault – Family Member cases are usually aggravated offenses involving the use or exhibition of a deadly weapon. If the defendant is convicted of an Aggravated Assault – Family Member and is sentenced to prison, the defendant must serve 50% of their prison sentence before they will be first eligible for parole.
  • First Degree Felony (Serious Bodily Injury – “means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Texas Penal Code Section 1.07(46) — 5 years to 99 years or Life in prison and up to a $10,000 fine.
    – If defendant was previously convicted of one third degree felony or higher (any criminal offense, does not have to be domestic violence), the punishment range increases to a enhanced first degree felony, which is 15 years to 99 years or Life in prison and up to a $10,000 fine.
    – If defendant was previously convicted of two third degree felonies or higher (any criminal offense, does not have to be domestic violence), the punishment range increases to a enhanced first degree felony, Habitual Offender, which is 25 years to 99 years or Life in prison and up to a $10,000 fine.

WHAT TO DO IF YOU’RE CHARGED WITH DOMESTIC VIOLENCE

Call Brian Roberts because the right lawyer makes all the difference in domestic violence cases. A domestic violence charge is NOT a no-win situation but you need the right lawyer to shepherd you through the difficult and complicated process and who will push back hard against the State. Brian M. Roberts has handled countless misdemeanor and felony domestic violence cases as a prosecutor and as a defense lawyer and is here to help you if you are charged with domestic violence. Brian is the lawyer you need with the experience you want.

Call for a free consultation at (713) 237-8888.

Brian M. Roberts serves clients in Harris County and surrounding counties.

When your life and liberty are at stake, you need a lawyer who knows how to navigate the complicated criminal justice system. Brian M. Roberts believes that every client deserves a strong defense, whether they are a first-offender or someone with multiple convictions. As a criminal defense attorney, Brian M. Roberts has extensive experience and will wage a strong defense for you. Do not hesitate. If you have a problem, we encourage you to call us today for your free, confidential consultation.