FAMILY VIOLENCE AND ASSAULT OFFENSES: LEGAL PROCEDURE GUIDE
Posted on by Michael Lowe.
Answers to Frequently Asked Questions of a Texas Criminal Defense Lawyer on Domestic Violence
I am routinely asked to provide answers to questions on so called Family Violence cases. Somebody called the police and you got arrested. You may or may not have given a statement to police officer. You may or may not have even been at the residence when the officer arrived at the scene to take the complainant’s statement.
What do you do now?
In this paper I am going to discuss some legal strategies I frequently employ to help my clients. This paper isn’t meant to be a comprehensive criminal defense lawyer’s guide to Assault, Impeding Airway or Aggravated Assault cases in Texas. The following are issues that frequently arise in these cases.
What are the Texas Family Violence laws?
The most common family violence cases are based upon violations of the following Texas statutes:
- 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
After you are arrested, you’ll notice that you may not be able to bond out of jail. What’s going on here?
Normally, once you get arraigned and the bond is set, you can just post a bond and get out. This is family violence, so there’s probably a special law that creates an exception to the normal rule, right?
Yes, “further detention” is authorized by Texas Code of Criminal Procedure article 17.291. Under certain circumstances the detention can be extended up to 48 “after the bond has been posted” if:
(1) the violence would continue if the person is released; and
(2) if the additional period exceeds 24 hours, probable cause exists to believe that the person committed the instant offense and that, during the 10-year period preceding the date of the instant offense, the person has been arrested:
(A) on more than one occasion for an offense involving family violence; or
(B) for any other offense, if a deadly weapon, as defined by Section 1.07, Penal Code, was used or exhibited during commission of the offense or during immediate flight after commission of the offense.
You may have been handed a document called an “Emergency Protective Order” or “Ex Parte Protective Order.” Once you bond out, and you’ve been given your copy of the Emergency Protective Order can you do anything to modify it? Should you do anything to modify it?
These are separate questions that need to be asked and answered in consultation with a smart and experienced criminal defense lawyer. I also need to mention that as of 2011, certain Sexual Offenses could be subject to an EPO as well. For example, if you’ve been arrested for a violation of Texas Penal Code section 22.011, 22.021 or 42.072, you may be subject to a protective. The following comments are applicable to family violence AND the above Sexual Assault offenses in Texas.
What is an EPO?
What is an EPO? The EPO is an order that is authorized by Texas Code of Criminal Procedure article 17.292. The order can prohibit the criminal defendant from doing the following:
1. Committing family violence or an assault on the person protected under the order; or
(A) directly with a member of the family or household or with the person protected under the order in a threatening or harassing manner; or
(B) a threat through any person to a member of the family or household or to the person protected under the order;
(3) going to or near:
(A) the residence, place of employment, or business of a member of the family or household or of the person protected under the order; or
(B) the residence, child care facility, or school where a child protected under the order resides or attends; or
(4) possessing a firearm, unless the person is a peace officer, as defined by Section 1.07, Penal Code, actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision.
These orders will vary from 31 to 91 days, which is in the discretion of the Magistrate that issued the order. What if the complainant/victim doesn’t want the EPO? Who can apply for an EPO? The judge can issue the EPO on their own. The police agency can make an application for an EPO. Of course, the complainant can also apply for an EPO, as well.
Under certain circumstances the EPO is required by law and the judge has no discretion, but to issue an EPO when he/she sets your bond amount in the jail. For example, if the case is defined as “family violence” under articles 71.004 and 71.0021 of the Texas Family Code and the case involves “serious bodily injury” or “the use or exhibition of a deadly weapon”, then the Magistrate is required by law to issue at least a 31 day protective order on the complainant’s behalf.
Now, maybe you don’t mind not talking to your spouse or girlfriend after you’ve bonded out but you need to go back to your home and this order is prohibiting you from going to within 1,000 feet of your own home! Can this be modified? Yes.
Motion to Modify the Emergency Protective Order
Your lawyer can file a Motion to Modify the Emergency Protective Order. This Motion can be filed in a couple of different venues. Once your lawyer files the Motion to Modify the EPO, the judge is required to conduct a hearing under section Texas Code of Criminal Procedure article 17.292(j). Before the hearing starts all of the “affected parties” need to be notified. This would include the arresting police agency, the complainant and the Defendant and his/her attorney. The “affected party” should not include the prosecuting attorney on the case since the statute does not explicitly include them in this definition. This hearing can either be a formal or informal hearing. A court reporter can be present but it is not required.
Under article 17.292(n), the hearing to modify can be either in one of two different venues. First, the original magistrate’s court can hear the modification motion. This type of hearing would likely take place in a Municipal Courtroom or JP Courtroom. These hearings are generally informal. More importantly, the only parties present will likely be the police agency, the Magistrate, the complainant/victim and the Defendant with his/her attorney.
Second, the Motion To Modify can be filed in the District or County Court that assumes jurisdiction over the case. To accomplish this, the lawyer will need to file a Notice to Transfer Jurisdiction to this court. The Notice will need to set out the reasons why jurisdiction is found in the court and notice must be given to all “affected parties.”
I don’t like to file Motions to Modify the EPO. The reasons for not filing the motion are basically legal in nature and deal with the right to confront and cross-exam witnesses which is afforded to each Defendant via the Bill of Rights including the 6th amendment. Later in this paper, I will more fully explain why I don’t typically file Motions to Modify the EPO.
CRAWFORD VS. WASHINGTON
Crawford vs. Washington is a United States Supreme Court decision that radically changed how family violence and, to some extent, sexual assault cases are handled in the criminal courts throughout the United States. Before the Crawford decision in 2003, Family Violence cases were often times prosecuted without the complaining witness ever testifying.
For example, if the complaining witness was not going to testify favorably on behalf of the District Attorney’s Office, the Assistant District Attorney wouldn’t seek to subpoena her and would proceed to trial without her testimony altogether. Now, this may seems totally stupid and pointless, but that’s how things were done for many, many years.
But then how would the DA’s office “make the case” against the accused? If the DA put the Arresting Officer on the witness stand, surely he couldn’t repeat the out of court statements the complainant made to him at the time of the arrest, right? I mean, that’s hearsay and that’s not gonna come into evidence, right?
Well, that was the job of the old “Excited Utterance” exception to the hearsay rule. Under Texas Rule of Evidence 803(2), when a witness wasn’t available to testify, the Police Officer would be permitted to give her hearsay account of what the officer remembers she said while she was “under the stress or excitement of a startling event or condition”, assuming that statement related to the startling event or condition she about which she was excited. So, her statement came into evidence for all purposes along with any photos and even a 911 tape.
The Crawford decision ruled that these types of statements made to law enforcement, if they are considered “testimonial” in nature, cannot be used in court even though there may be an applicable hearsay exception because it violates the accused Sixth Amendment rights to confront and cross-exam their accuser.
You see, this is not a rule of evidence decision. The Crawford decision is a decision based on the US Bill of Rights to the Constitution. Now, Texas Court interpreted this decision. The key issues concerning Crawford are (1) whether the Defendant had a prior opportunity to cross-exam the witness concerning the statements being offered in lieu of live testimony in the absence of the witness and (2) whether the offered statement is “testimonial” in nature.
So, the witness doesn’t need to appear in court for the hearsay statement to come into evidence as long as the Defendant previously had an opportunity to cross-examine the witness concerning the same subject matter at hand in their trial. In Texas, most of the cases interpreting the Crawford decision deal with what is the Courts consider “testimonial” statements.
For example, in a case called Wall vs. State of Texas, 184 S.W.3d 730, 744 (Tex.Crim.App. 2006), the Court of Criminal Appeals looks to whether a “reasonable person” in the declarant shoes would have appreciated the fact that the officer asking the questions of the complainant would be doing so in prosecution of a criminal investigation or collecting evidence for a “prospective prosecution.” In that case the complainant was the victim of an Aggravated Assault. The complainant was badly injured and was in the hospital while being interviewed by the Police.
The Texas Court of Criminal Appeals held his statements to the police at that time were “testimonial” in nature. There are many, many more cases being decided all of the time in Texas as to whether statements are “testimonial.”
One of the most important cases in this area is the Mason vs State of Texas, 225 S.W.3d 902, 908 (Tex.App.—Dallas 2007), it is clear the standard the courts will apply will be:
“Statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”
The Mason case examined whether the officers got the statement from the complainant after the complainant and the accused were separated. Basically, the courts will look to whether the officer is in “investigation mode” or in “emergency mode” when they get the statement they want to use in court. Of course, this means that 911 tapes are admissible in most cases. However, there may be some tricks your lawyer can use to keep them out anyway.
Now you may be wondering something: “Lowe, why did you use so much ink writing about bond conditions and Protective Order hearings—aren’t you a criminal defense lawyer that tries cases to win?”
Hell yes, I am. But you have to know how to win. That’s not taught in law school and can only be learned through experience and savviness.
So why do all of these pre-trial things matter at the end of the day? How can a pre-trial hearing hurt me in a family violence case?
Remember, we are talking about Family Violence here. Complainants frequently don’t show up for trial. If that happens in your case, you can bet the DA’s Office will try to find some way of getting the complainant’s out of court hearsay statements into evidence whilst also denying you the right to exercise your 6th amendment right to confront and cross-examine that witness. This scenario can be very advantageous to the DA’s office, in some cases.
How can they deny you your 6th Amendment rights without you knowing about it?
That’s the part where your lawyer should know what they are doing and be able to advise you appropriately at all stages in your case. For example, what if you were in jail and decided you want your bond reduced. Well, you and your lawyer are going to file a motion for a bond reduction and the judge is going to set that motion for a live hearing. The DA’s office will, of course, get the complaining witness to come to court to testify at your bond hearing in opposition to any bond reduction.
If the complainant shows up for the hearing in front of the County Criminal Court or the District Court and the DA’s office puts the complainant on the witness stand, then you’ve just “exercised” your right to confront and cross-examine the complaining witness in the case.
But you will say, “Okay, but there’s no jury, so how could have exercised my 6th amendment right?” The law is very clear. All it takes is a hearing with the opposing side present.
As long as you and your lawyer have the right to ask the complainant a question about the offense, you will have “exercised” your right to confront and cross-examine for the remainder of your case which includes any subsequent jury or non-jury trials. That is, if she doesn’t show up to court after that hearing, the DA will be able to use any of her statements as long as they comply with the Rules of Evidence against you without you ever getting to cross-examine her again.
How might this apply to an EPO or Protective Order Hearing?
It applies in exactly the same way. The mere opportunity to ask the complainant questions while under oath the State of Texas there in the courtroom will be enough for you to give up your right to confront the witness later on at trial. Now, that EPO Modification hearing may not look like such a good idea anymore. This is especially true if you happen to know that the complainant ain’t comin’ to court later on at your trial and the DA’s office doesn’t have any other significant evidence to prove your guilt in front of a jury.
You may be asking yourself, if the DA’s Office can’t prove their case without the complainant in Court, then why not just tell her not to show up if she’s subpoenaed to be there.
First of all, that would be a Felony Witness Tampering, so I would always caution my clients to “never go there” with any witness. More importantly, the DA’s office may get wind of your admonitions to the complainant to not appear in court. If that happens, you can rest assured that the DA’s office will file a motion called a “Forfeiture By Wrongdoing.”
What does that mean? In Gonzalez vs. State of Texas, 195 S.W.3d 114 (Tex.Crim.App. 2006), the highest court in Texas re-affirmed that common law rule called Forfeiture By Wrongdoing. In Gonzalez, the Defendant claimed that the Robbery victim, Maria Herrera, who eventually died later in the hospital, gave some important information to the responding police officer that led to the Defendant’s capture and eventually indictment and conviction.
At trial, the Defendant objected to the dead victim’s statements claiming that he had a right to confront and cross-examine the unavailable witness and therefore her “Excited Utterances” violated his 6th Amendment rights. The Court of Criminal Appeals ruled that he forfeited his 6th amendment rights due to his actions in shooting and killing the complaint in this case.
The same doctrine applies in Family Violence cases as well. For example, if the Defendant bought a motel room for the subpoenaed complainant and asked her to stay there during the trial in his case, the court would take that into consideration to determine whether his actions to subvert the subpoena process constitute a forfeiture by wrongdoing. If the court rules in favor of the DA’s Office, in this way, then all of the statements that aren’t otherwise objectionable are coming into evidence, with or without the witness to testify.
I also frequently get calls asking questions about the “Affidavit of Non-Prosecution.”
I know what you’ve heard. You think if the complainant just fill out the Affidavit and begs for the case to be “dropped” then the police will apologize for arresting their loved-one. Well, that’s just not how things work.
Unfortunately, there’s no silver bullet, single strategy that will make a Family Violence case get dismissed. Remember, it’s the DA’s Office that decides to dismiss the case. No one can make them dismiss their case. So, will filling out the Affidavit help the case? I don’t think so.
But if you are convinced otherwise and don’t care what I have to say then here you go. The following is a sample ANP. You can use it if you think it will help. Fill it out take it to the DA’s Office, whatever you want to do with it. I don’t care. Just remember where you got it from when the case doesn’t get dismissed.
THE STATE OF TEXAS }
COUNTY OF _________ }
BEFORE ME, the undersigned authority, on this date personally appeared _______________, who, after being duly sworn on her oath, stated the following:
“On __________, I gave a written statement to the ________ Police Department in connection with File Number ____________ and at the direction of the _______ Police Department. I have reviewed that statement and I would like to make the following corrections to that statement. Although there was a physical altercation between myself and my husband, _______________, on _____________, I do not believe that he ever caused me any physical pain as a result of the physical struggle that occurred on ________________ at _____________, _________,County, Texas. Thereafter, I have felt no physical pain as a result of this altercation.
“I do not believe that ______________ is a violent person. I have been informed by my divorce attorney,_____________, that my husband is being prosecuted for a Class “A” Assault Family Violence case. I do not wish for him to be prosecuted for what happened on ________________. Currently, my husband and I are going through a divorce. We are engaged in a Collaborative Divorce and do not wish to litigate child custody or any other matters concerning our divorce. However, I have been informed by my attorney that we cannot move forward with our divorce unless and until the criminal matter against my husband is finally resolved. It is my wish that the case against________________ be dismissed with prejudice.”
Further affiant sayeth not.
SUBSCRIBED AND SWORN TO before me the undersigned authority on this the _____
day of _____________, 20__.
Notary Public in and for the State of Texas
My Commission expires: _________________
About the Author: Michael Lowe is a Texas trial attorney practicing criminal defense law in the Dallas area for many years after first serving as a felony prosecutor for the Office of the District Attorney for Dallas County. He is Board Certified by the State Bar of Texas in Criminal Law. Mr. Lowe has tried to verdict over 150 criminal trials so far in the state and federal systems.
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