Assault-family violence – commonly known as domestic violence – is regularly charged in the Greater Houston area. Although a first-time assault-family violence case is almost always filed as a misdemeanor, the consequences of a conviction can be severe. This article addresses many of the common questions a person charged with first-time assault-family violence may have. The information is provided for informational purposes only. If you are charged with assault-family violence, you should speak with an experienced criminal defense attorney as soon as possible.
How is first-time assault-family violence case charged?
As noted, most assault-family violence cases are charged as misdemeanors. A misdemeanor assault-family violence case involves an allegation that an assault causing “bodily injury” took place against a defendant’s spouse, someone the defendant is in a dating relationship with, or a member of the defendant’s family. Under Texas Penal Code 1.07, bodily injury is defined as physical pain, illness, or any impairment of physical condition.
There are several situations that could result in a first offense assault-family violence being charged as a felony. The most common scenarios are where there is an allegation of choking, a deadly weapon is alleged to have been used, or there is serious bodily injury. If there is an allegation of choking, a first-time assault family-violence case can be charged as a third-degree felony punishable by 2-10 years in the Texas Department of Criminal Justice. If there is an allegation that a deadly weapon was used or there is an allegation of serious bodily injury, the case could be charged as a second degree felony punishable by 2-20 years.
What can I expect at my first court date for assault-family violence?
Typically, at your first court date, a judge will address bond condition and frequently warn the defendant against committing additional offenses. In an assault-family violence case, a Magistrate’s Order of Emergency Protection (MOEP) will almost always be set. A MOEP can prohibit a defendant from communicating with a protected individual (typically the alleged victim) or going to their home or work. A judge can also limit a MOEP to only prohibit “threatening and harassing contact” which is a preferable option for many defendants as it will not require them to leave the home. A MOEP will be in effect for 60 or 90 days depending on the facts of the case.
It is very important to understand that even though a MOEP will expire, there could be bond conditions set by the judge independent of the MOEP that do not expire. In the Greater Houston area, it is common for judges in assault-family violence cases to make it a condition of bond that a defendant have no contact with the victim and/or go to her home or place of employment. As explained below, it is critical that abide by any such conditions very carefully.
Other typical conditions can include ordering a defendant to not possess firearms, not leave the State or county, and not consume drugs or alcohol (especially if the offense is alleged to have involved substance use). Typically, you will not be asked to say or do anything at your first court visit other than acknowledge your bond conditions and the judge’s warnings. It is very important to dress appropriately for court and to never be late.
How quickly do I need to hire an attorney in an assault-family violence case?
In general, there is no rush to hire an attorney in an assault family violence case. It is a good idea to take your time and do your research to find the best attorney to handle your case. You should be very suspicious of attorneys who use high-pressure tactics to convince you to hire them. Attorneys who try to manipulate you in this way typically do not have your best interest in mind.
Even if you appear at your first court date without an attorney, nothing bad or irreversible will happen to your case. Of course, it is preferable to have an attorney with you when bond conditions are set, so your attorney can advocate on your behalf, and ensure that any bond conditions that are set by the court are not overly restrictive.
What if I have an open warrant for assault-family violence?
If you are accused of assault-family violence but were not present at the scene of the alleged incident when the police arrived, it is possible that you could have an open warrant for your arrest. You may have found out that you have an open warrant after receiving mail or text messages from bonding companies or attorneys’ offices.
If you have a warrant for your arrest for assault-family violence, you should not panic, but you should get it resolved as quickly as possible. Generally, if you have an open warrant, you must turn yourself in to jail, wait to see a magistrate judge who will set your bail amount, and then bond out. In the Houston area, some judges will permit “walk-through” arrests in assault-family violence cases, which may be an alternative to actually going into custody. A walk-through arrest allows you to turn yourself in while court is in session. Rather than being taken into custody, a judge would set a bond amount and then allow you to leave the courtroom with a bondsman so you can post bond. Not every judge in the Houston area allows a walk-through arrest in an assault-family violence case, so it is important to check with an attorney first.
What if I violate a protective order in an assault-family violence case?
Violating a protective order in a case alleging domestic violence is a terrible idea and could lead to disastrous consequences. First of all, a judge can – and typically will – revoke your bond if you do not obey a protective order. Moreover, under the Texas Constitution, a violation of a protective order in a case alleging family violence is one of the few instances where a defendant can be held without bond. That means that you would have to remain in custody while your case is pending, which could be months.
Next, violating a protective order could lead to an additional criminal charge for violation of a protective order. Under Texas Penal Code 25.07, it is a Class A misdemeanor to violate a protective order by committing another act of family violence, communicating with a protected person, going near prohibited places, or possessing a firearm. A charge of violating a protective order is frequently treated even more seriously than the original charged of assault-family violence.
In addition to the possibility of going to jail and facing a new charge, violating a protective order in an assault-family violence case will make it much more difficult from your criminal defense attorney to obtain a good result in your case. Prosecutors and judges tend to view defendants who violate protective orders as dangerous people who should be placed in jail or on probation. This is the opposite of how your criminal defense attorney will typically want to portray you – as a peaceful person who found himself in a bad situation, and has been wrongly accused, or acted out of character in this isolated incident.
Can a protective be lifted in an assault-family violence case?
Although most assault-family violence cases filed in the Greater Houston area will be subject to MOEPs and bond conditions restricting contact, such conditions can be lifted. An experienced criminal defense attorney should know the best strategy to get bond conditions and MOEPs modified based on the judge handling the case. Typically, a judge will want to hear from the complaining witness to see if she does indeed wish for the defendant to return home.
Can the victim “drop” the charges?
Many defendants in assault-family violence cases incorrectly believe that if the complaining witness picks up the phone and calls the DA’s office, the case will automatically be dropped. This is far from accurate. The State of Texas can move forward with the case regardless of whether the complaining witness wishes for charges to be dropped.
Nevertheless, in many assault-family violence cases, the District Attorney’s office will need the testimony of the complaining witness at trial to prove the case. Under the laws of the United States and Texas Constitutions, a person accused of a criminal offense has the right to confront his accusers. That means that if you are charged with assault-family violence, the person who accused you has to come to court and subject herself to cross examination by the defense.
Neither a defendant nor a defense attorney should do anything to persuade a witness to not appear in court. Tampering with a witness in a domestic violence case can lead to a very serious criminal charge. However, an effective criminal defense attorney can and should speak to a complaining witness to obtain a truthful statement that may aid in the defense and express the complaining witness’ desire that charges are dropped, if that is the case.
How do I choose the best attorney for my assault-family violence case?
There are several things to consider when choosing an attorney for an assault-family violence case. First of all, it is a good idea to hire an attorney that focuses his practice on criminal defense. Many attorneys handle all types of cases, and handling a wide-variety of legal matters is usually not the way to become effective at any single type of case. It is a good idea to find out how frequently the attorney handles assault-family violence cases, as these cases can present unique issues that an experienced attorney would be much better suited to handle. A criminal defense attorney’s prior experience as a prosecutor can also be valuable experience to consider.
Next, it is a good idea to do some research about the attorney. Although the internet is not a perfect tool (many unscrupulous attorneys are known to use fake reviews, although these are usually pretty easy to spot), it can give you an idea of the level of satisfaction – or dissatisfaction – that former clients of an attorney express.
An effective criminal defense attorney for an assault-family violence case should have a very clear strategy for how to approach the case to get the best result. If an attorney cannot express a clear strategy, and instead relies on frightening you with the potential of jail time, that is typically a red flag.
Finally, it is important that the attorney is able to communicate well with you. In a domestic violence case, an attorney is an advocate for you in court, but he is also an adviser, and as a result, it is very important that communications are clear and respectful.
To determine which criminal defense attorney is right for you, it is a good idea to speak to several and compare their experience, reputation, strategy and communication skills. As noted above, there is typically not a huge rush to hire a criminal defense attorney in a domestic violence case and you should be very skeptical of high-pressure sales tactics.
How can I get an assault-family violence case dismissed?
One of the most important things a criminal defense attorney can do in an assault-family violence case to get the case dismissed is to get a truthful statement from the complaining witness explaining the alleged events in a way that is helpful to a defendant. It is important to understand that a defendant should never attempt to collect such a statement for several reasons. Gathering a statement from the complaining witness should be done by a criminal defense attorney, and ideally after he has gathered the relevant evidence.
After a statement is gathered, a criminal defense attorney must decide the best strategy. In some cases, the statement can be shared with an honest prosecutor who will do his job and evaluate the case in light of the statement. In other cases, sharing information with the prosecutor is not productive and will simply cause the prosecutor to add the statement to his file, without giving the defense anything in return.
To get an assault-family violence case dismissed, it is sometimes necessary to set a case for trial. A criminal case should never be set for trial unless the defense is actually willing to go to trial. Bluffing can lead to terrible consequences. But the reality is that many prosecutors are unwilling to dismiss a case unless they are faced with the prospect of going to trial on a case they might lose, or where they lack key witnesses.
It is not possible to obtain a helpful statement in every case and in some cases, the facts are not on the side of the defense. Nevertheless, in many first-time assault-family violence cases, it is still possible to obtain a dismissal by convincing the prosecutor that the alleged incident was a one-time mistake and that the defendant deserves a second chance. In the Houston area, it is frequently possible to obtain a pre-trial diversion in an assault-family violence case that could lead the dismissal of charges. A pre-trial diversion is a contract with the prosecutor that the case will be dismissed if certain conditions are met. If an assault-family violence case cannot be dismissed (and only the prosecutor can dismiss the case), then it will sometimes be necessary to go to trial.
In an assault-family violence case the goal should be either dismissal or an acquittal at trial. If your attorney helps you achieve either of these results, then you will be eligible to have your records expunged, which is the best possible result in a criminal case.
Attorney Jose Ceja is a former prosecutor who has handled hundreds of domestic violence cases. He regularly obtains excellent result for his clients in assault-family violence cases throughout the Greater Houston area. If you have been charged with assault-family violence, call Ceja Law Firm for a free consultation.