Family Violence: What Are My Options?
Are you kidding me? She called the police because she was mad. Now the police arrested me for Family Violence. What now?
(to simplify, I use “she” as an example, but this applies to “he” all the same)
It is a mistake to call the police to settle a relationship dispute. Call the police when you encounter a real issue such as burglary or assault. DO NOT CALL THE POLICE BECAUSE YOU ARE MAD AND WANT THE POLICE TO INTERVENE. If there is an allegation of assault, the chances of jail time are very high, regardless of the merits of the allegation. Family violence is a very serious crime that courts and law enforcement look at very seriously.
Before getting into some of the common questions, you should understand some of the definitions involved in family violence.
Family Code Definitions
Sec. 71.003 of the Texas Family Code defines FAMILY as: “Family” includes individuals related by consanguinity or affinity, as determined under Sections 573.022 and 573.024, Government Code, individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parent, without regard to whether those individuals reside together.
Sec. 71.005. of the Texas Family Code defines HOUSEHOLD as: “Household” means a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other.
Sec. 71.006 of the Texas Family Code defines MEMBER OF A HOUSEHOLD as: “Member of a household” includes a person who previously lived in a household.
Can the police arrest someone for assault based on word alone, without any evidence?
The law requires that there be probable cause for the police to make an arrest. For an assault this means “offensive contact that causes pain.” (Texas Penal Code § 22.01). For example, a police officer may arrest someone based on an allegation that they were hit or slapped without any evidence of bruises or marks. They consider a person’s statement or “word” as evidence. There is no law that requires that there be corroboration. An arrest is ultimately the discretion of the police officer. It is not uncommon for a discovery packet to have pictures that do not show any evidence of injury. An arrest may not be avoidable, but a conviction may be. It boils down to what can be proven in a court of law. Are the statements believable? Are there credibility issues? Is there reasonable doubt?
The victim does not want to prosecute. Can I still be prosecuted?
Yes, this happens all the time. There is no law that states that if a victim does not want to prosecute, the case must be dropped. In North Texas counties, the opposite is generally true. Once submitted by the police department to the district attorney’s office, prosecutors generally move forward with the case. It is highly advisable to retain an attorney immediately. The victim can call the prosecutor every day and beg to dismiss the case and the prosecutor can (and often does) still move forward.
There are many reasons why this happens. A prosecutor has an ethical duty to act in the interest of justice. The prosecutor may feel that despite the victim not wanting to prosecute, it is in society’s best interest to move forward. Does the defendant have a past? Have there been previous 911 calls to the police? Are there witnesses? Did the event involve children? The prosecutor may believe the victim is acting out of fear. The prosecutor may not believe a recantation of the victim.
THE VICTIM DOES NOT CONTROL WHETHER OR NOT PROSECUTORS GO FORWARD. Prosecutors sometimes proceed to try cases even when the victim refuses to testify. What is important is what the defense lawyer can accomplish with the prosecutor in discussions and negotiations. This often rests on the viability of going to trial. Trying a family violence or assault case is far less technical than a forensic evidence DWI case. Mimi has tried over 300 cases (including misdemeanor assault up to first degree (5 to 99 years in prison) aggravated assault with a deadly weapon on a public servant). She brings a wealth of critical experience necessary in winning an assault trial: sizing up the credibility of a witness, cross examination designed to expose untruths, character building and character attack where admissible and relevant, winning trial strategies, and understanding and selecting jurors.
I heard that family violence deferred adjudication results in a fake dismissal. Is this true?
Yes, deferred adjudication for family violence does not result in a true legal dismissal (similar to the new Fake Deferred Adjudication for DWI). Although successful completion of terms results in a case dismissal, the case legally still exists for purposes of enhancement. Law enforcement still has access to this disposition record. A second family violence case results in a felony. The reason for this is because, even if placed on deferred adjudication, the judge still enters a finding of family violence on the record (Texas Penal Code § 22.01(f)(1)). That Penal code section states:
“a defendant has been previously convicted of an offense [of family violence], if the defendant was adjudged guilty of the offense . . . in return for a grant of deferred adjudication, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated and the defendant was subsequently discharged from community supervision . . .”
Texas Penal Code § 22.01(b)(2)(A) increases punishment to a third degree felony if “it is shown . . . that the defendant has been previously convicted (see above) of an offense . . . against a person whose relationship to or association with the defendant [is defined under the family code as family violence].”
In addition, a deferred adjudication can have negative legal repercussions for sealing one’s record, among other things. It is the firm’s goal to avoid a conviction and a fake dismissal (that counts as a conviction) at all costs, unless there are no better options and the case is not triable. “Fool me once, shame on you. Fool me twice, shame on me.” Defendants need to accurately ask themselves, where falsely accused: “If she called the police on me once, will she do it again?” Take no chances. Get your case resolved properly or you may regret it.
No one will believe me, that this did not happen. I have no witnesses and she is lying!
Have no fear. “The truth is in the pudding.” We will get down to the bottom of the situation. Prosecutors are legally able to bring in past bad acts under the Texas Rules of Evidence (Rule 404, Rule 405, and Rule 609); specifically, in a family violence trial where such allegations would be prohibited in other types of offenses. However, bad acts works both ways. It is very important that we go over all the facts of the case, the nature of the relationship, relationship history, and speak with witnesses (if applicable) to understand how to attack the charges. Do not give up or make an emotional decision. This is your life, reputation and liberty.
The legal repercussion of an assault or family violence conviction are serious.
Family violence and assault cases are very serious. Depending on the nature of the offense (for example, man on woman), there may be a classification of “crime of moral turpitude.” A “crime of moral turpitude” is the common phrase defining crimes involving dishonesty, fraud, and deliberate violence (among other crimes). Crimes of moral turpitude can prevent state occupational licensing (eg. teacher, doctor). The law considers family violence and assault cases as crimes of violence. These types of convictions can prevent a person in jail (for example on a DWI) from gaining “trustee” status. They can also deny one jail alternatives (for example, labor detail) for past violent classification (convictions). An assault conviction or pending case can prevent entry into schools, scholarships or teaching assistant jobs. These are just a few of the more poignant consequences.
I was released from jail with an emergency protective order. What does this mean?
It is not uncommon for there to be a protective order when a person is arrested for family violence. A protective order must be read and followed (see Texas Family Code § 85.022). Any violation can result in additional charges. Bring the protective order to our office, we will consult you on the specifics and discuss if there are any options. In short, an emergency protective order was granted by a magistrate out of fear of further violent behavior.
I really don’t feel like I have a case to defend. What are my options?
There are many options that can include dismissal (true dismissals). Everyone makes mistakes. We will advise you on the best options for your case and productive damage control measures in the interim. It is often in the best interest of justice, that these cases not get prosecuted. We can assist you with this. We are here to help!
When people look for a Top DWI Attorney or Best DWI Attorney, they look for experience, certification, and respect in the legal community. Mimi Coffey is a nationally-renowned trial attorney, board-certified in DWI by the NCDD. She has been practicing for over 24 years and is an author of multiple DWI Defense textbooks. She is also a national and state-wide lecturer on the law.
Mimi is also listed on several “top” directory listings such as DWI Lawyers for Wise County, DWI Lawyer Fort Worth, DWI attorney Dallas County, DWI attorneys Collin County and DWI attorneys Parker County. Mimi is a caring DWI Lawyer in DFW, She is also involved in the Texas Tech School of Law foundation and enjoys using the skills she has developed to give back to the community.