How are domestic violence cases defended?

Domestic violence cases – known as assault family violence under Texas law – are one of the most common types of criminal offenses in the state. Most assault family violence cases are filed as misdemeanors, but they can become felonies in some situations, including where there is a prior conviction, if there is an allegation of choking or if the use of a deadly weapon is alleged. In many counties, assault family violence cases are handled by special divisions in the District Attorney’s Office by prosecutors who have special training in handling these cases, since they present unique challenges to both the prosecutor and defense attorney. The below is an overview of many of the key features of assault family violence cases.

There are several common scenarios in assault family violence cases and each will require a specific approach to obtain the best result. These scenarios range from couples who become intoxicated together and have a fight which turns violent, to accusations made in the middle of a divorce or a custody dispute, to accusations that are outright lies because of some motive to fabricate or even a mental illness on the part of the alleged victim. Each variation will require a tailored approach and an experienced attorney will have experience successfully defending each scenario. A smart criminal defense attorney will want to keep an open mind and understand the entire dynamic in the relationship, not just what the allegations are on the day of the incident.

What is the goal in an assault family violence case?

The goal is to obtain a dismissal or acquittal whenever possible. Although most assault family violence cases are filed as Class “A” misdemeanors, the consequences can be more severe than most other misdemeanors. In addition to facing jail time, a fine and a permanent criminal conviction, a person convicted of assault family violence will be prohibited from owning a firearm under federal law.  Additionally, an assault family violence conviction is considered a “crime of moral turpitude,” which can have extremely negative consequences for an immigration case where the person convicted is not a United States citizen. Additionally, where a person has a conviction, any future accusation of assault family violence will be filed as a felony, with even more severe consequences. The best way to avoid these consequences is to prevent a conviction in the first place.

What is the first step to defending an assault family violence case?

The attorney should meet with the person charged and get some general details regarding the allegation. An experienced criminal defense attorney will also let the client know what to expect during the case, court appearances and an estimate as to approximately how long the case is expected to last. The attorney should also find out if the alleged victim (known as the “complaining witness”) is willing to speak with the defense attorney and provide a truthful statement.

After the initial meeting, the next step is gathering the evidence. In an assault family violence case, there will usually be a 911 call, offense report, witness statements and sometimes photographs or medical records. The State of Texas has a legal obligation to provide this evidence to the defense, although that can often take many months. A thorough criminal defense attorney will take the time to review the evidence with the client so that the client understands the facts and can provide context to the criminal defense attorney. 

What if there are physical injuries?

In many cases, there will be photographs and/or medical records documenting alleged physical injuries. These injuries will often be presented in police reports as proof that an assault occurred and as corroboration of the alleged victim’s accusation. The police report’s interpretation of the evidence should never be taken for granted. Physical evidence should be aggressively challenged. Very often, the physical injuries will be inconsistent with what the complaining witness is alleging. The absence of certain kinds of injuries can also be powerful, depending on the accusation. For example, if the alleged victim claims that he or she was choked until she passed out, but there is no physical proof of any kind, that can cast doubt on the allegation. An expert witness, such as a nurse or doctor, can be used to interpret injuries and medical records and an experienced criminal defense attorney will be skilled at working with these expert witnesses.

Even where there aren’t inconsistencies, physical injuries do not mean that a conviction is inevitable. Self-defense is recognized in Texas and can be successfully used in assault family violence cases. In fact, arguing self-defense, or that the fight was mutual, is one of the most common defenses successfully raised in this type of case.

Should a lawyer speak with the alleged victim?

A criminal defense attorney should absolutely make an effort to speak to the alleged victim. After the lawyer understands the evidence and the police’s version of the events, ideally the victim would provide the defense a truthful statement which can be used to explain what happened. An effective criminal defense attorney will try and get a recorded or notarized statement, which can be used in trial, or possibly presented to the prosecutor in order to obtain a favorable result. It is generally a good idea to wait until the defense attorney can speak with the alleged victim before she writes a statement.

Even where it seems unlikely that the alleged victim will want to cooperate with the defense, it is still worthwhile to gain whatever information possible from the alleged victim and to get an idea of how a witness might testify, if the case goes to trial. There is no excuse for an attorney not making an effort to speak with the alleged victim as this is usually the most important witness in an assault family violence case.

What if the alleged victim wants to “drop” the case?

In many cases, the alleged victim will call the District Attorney’s office to attempt to “drop” the case, thinking that the case will be dismissed if he or she does this. When the alleged victim attempts to do this, this usually won’t lead to the case being dismissed as the State of Texas can proceed with the case, regardless of the alleged victim’s desire to drop the case.

Will there be a protective order?

In many assault family violence cases, the judge will issue an order that the accused person not have contact with or communicate with the alleged victim, or go near the person’s workplace. These orders can vary in severity and in the length of time they are applicable. But they can be very disruptive and often force a person accused of domestic violence to have to leave the home while the order is in effect. Protective orders should be strictly obeyed, because if they are not, the judge can revoke a person’s bond. There is also an independent criminal offense of violation of a protective order, which can be filed in addition to the assault family violence case.

Can the protective order be lifted?

Yes. Particularly in misdemeanor cases, many judges are willing to relax or remove a protective order. Before this is done, the judge will usually want to speak with the alleged victim to ensure that he or she does in fact want the order removed. An experienced criminal defense attorney can help facilitate this process.

What is a trial like in an assault family violence case?

Only the prosecutor can dismiss a case (not even a judge can). If the case is not dismissed, and an acceptable plea agreement is not reached, an assault family violence case will go to trial. Trials in assault family violence cases are like trials in all criminal cases: It will always be the prosecutor’s burden to present evidence to attempt to convince the jury to find a person guilty. An experienced criminal defense attorney will know how to challenge every aspect of the prosecutor’s case in order to obtain a verdict of “not guilty.” Unless there was another witness to the incident who can testify, the prosecutor will generally need to alleged victim to testify if they want to prove their case.

Are there programs for first time offenders?

While Texas law does not explicitly provide for programs for first-time offenders to get their cases dismissed, prosecutors will sometimes offer dismissals in exchange for completion of classes like anger management, or classes known as “batterers intervention programs.” Particularly where a case is difficult to defend due to unfavorable facts, this can be a good option. In order to get an offer like this, a criminal defense attorney should still try and challenge the evidence and obtain a statement from the alleged victim, to expose weaknesses in the prosecutor’s case. The best results are always obtained by being proactive.

This information has been intended to provide a general overview of assault family violence cases in Texas. Every case is different and the above is not intended as legal advice. If you are charged with assault family violence anywhere in the Greater Houston Area, attorney Jose Ceja is an excellent choice. By employing strategies such as these, he has obtained outstanding results in assault family violence cases and understands the best strategy to employ to obtain the best possible result. Call today for a free consultation.