A first-time assault family violence case is usually filed as a misdemeanor in Texas. In the Houston area, hundreds of Class “A” misdemeanor assault-family violence cases are filed every year. Misdemeanor assault-family violence can be punished with up to a year in jail and a $4000 fine. Even if you are placed on deferred adjudication, you can never get an assault-family violence case sealed under Texas law, and if you are convicted, any future case will be filed as a felony. Therefore, it is critical to do whatever you can to get the case against you dismissed and expunged. Fortunately, in the Houston area, hundreds of assault family violence cases are dismissed every year.
In many assault-family violence cases, the complaining witness will be willing to write an affidavit of non-prosecution to get the case dismissed. Many people are under the mistaken assumption that an affidavit of non-prosecution is a silver bullet that will immediately lead to the dismissal of a case. Unfortunately, this is not the accurate. The State of Texas can proceed with a case regardless of what the complaining witness may write in an affidavit. Furthermore, writing a statement at the beginning of the case may lead to a rushed and sloppy statement that can complicate the situation and make the case harder to resolve successfully in the future. Most experienced criminal defense lawyers recommend waiting until the evidence is obtained first before considering obtaining a statement in a domestic violence case.
In an assault-family violence case, your attorney will need to review the 911 call, police reports, videos and medical records to understand the allegation. Then your attorney can attempt to obtain a truthful statement from the complaining witness explaining the situation in a way that is favorable to the defendant. If this is a case of self-defense, or a case of mutual combat, the complaining witness should state that in the affidavit. If your attorney is able to see the evidence before the statement is made, he can ensure that the statement is accurate and does not unnecessarily conflict with the evidence in the possession of the prosecutor.
The statement should also be made with an eye for trial and possibly as a tool to impeach the complaining witness. Assault-family violence cases deal with volatile relationships. Although a complaining witness may be on your side at the beginning of the case, there is no guarantee that things won’t change. A thorough statement (preferably one that is sworn in front of a notary) can be used by a smart defense attorney to lock in a complaining witness’ statement and impeach her if she changes her story at trial.
Once the statement is obtained, then your criminal defense attorney will need to make a strategic decision regarding whether or not to share the statement with the prosecutor. This is something that should be decided on a case-by-case basis. Many prosecutors can be trusted to do the right thing if they receive a statement that convincingly explains the alleged assault in a way favorable to the defendant and expresses the complaining witness’ desire that the case be dismissed. But many prosecutors will simply put the statement in their file and do nothing, or worse yet, use it to prepare for trial and/or coach witnesses.
If your attorney decides not to share the statement, it is best to start preparing for trial. It is almost cliché to say so, but the best results in criminal cases are obtained when your attorney is ready for anything. In other words, in an assault-family violence case, an effective defense attorney will prepare to do battle while keeping the possibility of a less risky resolution open.
Less risky resolutions that can result in the dismissal of a domestic violence case include pre-trial diversions. A pre-trial diversion is a deal your attorney can make with the prosecutor, that if you comply with certain conditions, your case will be dismissed. After successful completion of pre-trial diversion, you are typically eligible for an expunction, which is the best result in an assault-family violence case, as records relating to the arrest are destroyed. Sometimes these deals – when they are offered – are conditioned on the completion of some form of counseling for alleged domestic abusers – known as a batterer’s intervention program, in the Houston area. On occasion, a prosecutor may offer a dismissal if you complete an online course, such as an anger management course.
If you have criminal history, or the alleged injuries to the complaining witness are serious, it is unlikely that you will be offered a pre-trial diversion or a class and dismiss. In that case, trial may be your best chance to keep a domestic violence conviction off of your record.
Entire textbooks can be written on the topic of trial strategy. As a defendant, the important thing is to have an attorney in your corner who has trial experience and is not afraid to go to trial. There should be a clear strategy and defense at trial – whether it is self-defense, or that the assault was fabricated, and, if so, what the motive to lie was.
It is also important to note that the defendant must be present at trial. Under the United States and Texas Constitutions, you have the right to cross-examine any witness who has made an accusation against you. In a domestic violence case, this usually means that the complaining witness must be present at trial, or the State will not be able to prove its case (it is always the State’s burden to prove a defendant committed a criminal offense). It is not a good idea to set a case for trial hoping that a witness won’t show up and a lawyer and defendant should never – under any circumstances – encourage a witness to not appear in a criminal case (this is actually considered witness tampering). However, your lawyer should take the availability of witnesses into account when deciding whether to set your case for trial. It is no secret that witnesses disappear and refuse to show up to trial in assault-family violence cases.
In short, the most important thing is that your lawyer is proactive at every stage of the investigation. Your lawyer should aggressively challenge the evidence, talk to witnesses and conduct his own thorough investigation. Although not every assault-family violence case will go to trial, every case should be prepared as if it is going to trial. In criminal defense, fortune favors the well-prepared.
It is also important to be patient. Do not rush into an affidavit of non-prosecution that may lock you in to an inaccurate and unhelpful version of the facts. Do not complicate your situation by violating your bond conditions. Although bond conditions in an assault-family violence case can be oppressive, a criminal defense attorney may be able to get them modified. It is important to remember that violating your bond conditions will complicate your case and make a dismissal via a pre-trial diversion or class and dismiss much less likely (prosecutors are reluctant to offer these deals if they think they are dealing with a serial offender).
Attorney Jose Ceja is a former prosecutor who regularly obtains excellent results in assault-family violence cases in Harris County, Fort Bend County, Galveston County, Montgomery County, and Brazoria County. If you are charged with domestic violence and would like to maximize your chances of getting your case dismissed, Ceja Law Firm is an excellent choice. Contact us today.