HAPPY HOLIDAYS: LET’S TALK ASSAULT CHARGES FROM A DALLAS CRIMINAL DEFENSE PERSPECTIVE

Thanksgiving is two weeks away; New Year’s Eve is 49 days from today. We’re right in the middle of the 2015 Holiday Season. And with it, from a criminal defense perspective, the spotlight shifts to reports of police arrests for assault. All different kinds of assault.

It’s true that this time of year does seem to bring an increase in the number of arrests for assault-related crimes here in Texas. Domestic violence assaults (family violence); sexual assaults (rapes); assault with a deadly weapon; aggravated assault; and more.

The Texas Penal Code defines a great many different kinds of “assault” as various level of felony or misdemeanor crimes. (Go here to read about assault crimes in more detail.)

Statistically speaking, North Texas and the rest of the country can expect to see more arrests on assault charges between now and the end of the year. See, for example, the local NBC report by Christine Lee, “Police: Domestic Violence Calls Increase During Holidays.”

However, an arrest is not a conviction. But it’s getting murky for many.  With the growing power of social media and Internet gossip, the job of a criminal defense lawyer is expanding to deal not only with the criminal justice system itself and making sure that his client’s rights are protected and honored at every step of the process, but that an accusation of assault alone isn’t wielded as a tool to harm or sway things regarding his client’s defense and rights afforded him or her under the U.S. Constitution.

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Think this is melodramatic? Think again, considering the following stories:

DOMESTIC ASSAULT DEFENSE: NEED TO INCLUDE DEFENDING SOCIAL MEDIA INNUENDO?

1. Trial by Media of Dallas Cowboy Greg Hardy for Domestic Assault Despite No Conviction, Expunged Record

First, there’s all this talk right now about Dallas Cowboy pro football player Greg Hardy. Last week, photos were published by Deadspin.com as their “Greg Hardy Police Photos Gallery” alongside their article “This Is Why NFL Star Greg Hardy Was Arrested For Assaulting His Ex-Girlfriend.”

Legally, there’s no case. Yes, Greg Hardy was arrested for domestic assault in North Carolina last year. He went through the proper legal steps. The case against him was dismissed. No conviction. No jail time. No fine. His request to have the case expunged from his record was granted by a North Carolina judge (read more about expungement here).

Expunged means we shouldn’t be considering these charges, much less judging Hardy to be someone who physically assaults women. Still, here we are. There are obvious trial by media issues. Remember things like a right to a trial and the presumption of innocence?

The expungement itself hasn’t stopped lots of online chatter. It didn’t stop the photos from being circulated on the web. It hasn’t prevented at least one politician getting national news coverage for asking why the National Football League hasn’t made sure that Hardy is fired from his job with the Dallas Cowboys.

Note: Jerry Jones, who owns the Dallas Cowboys, issued an official statement that Greg Hardy is getting a “second chance.” As for the NFL, they are busy enough right now preparing for all the media blowback they are going to be getting regarding concussions and brain injuries to pro football players after Will Smith’s new movie “Concussion” is released on Christmas Day.

So, in a criminal case with no conviction and an order of expungement, there is growing online coverage of an assault allegation.  

2. What is Domestic Assault in Texas?

In Texas, domestic assault is a family violence crime. The Texas Penal Code divides it into different charges: domestic assault; aggravated domestic assault; and continuous violence against the family.

For example, someone who is accused of hitting his girlfriend might be charged with a violation of Texas Penal Code Section 22.01, where he is accused of intentionally, knowingly, or recklessly causing bodily injury to a current or past dating partner.

If he has no prior assault convictions, then he might be found guilty of a Class A misdemeanor; however, if he has a prior domestic assault conviction on his record, then he would be facing a third degree felony charge in Texas.

SEXUAL ASSAULT DEFENSE: NEED TO DEFEND RIGHT OF INNOCENCE UNTIL PROVEN GUILTY FROM DEFAMATION CLAIMS?

1. Cosby’s Lawyer Issues Press Statement, It’s Used as Basis for Defamation Claim

That Bill Cosby case seems to get bigger and bigger every week, if you read the web, doesn’t it? This week, we have reports that there is a 2008 incident out of California that may not have been barred from prosecution by the statute of limitations. So, federal authorities (yes, federal) are investigating sexual assault charges against Bill Cosby based upon this allegation.

Meanwhile, another civil defamation (libel, slander) case was filed this week against the comedian by a woman. She is suing for damages by arguing her character has been defamed by Cosby’s denials that he committed sexual assault on her in 1965. Her case is based upon Cosby’s lawyer issuing a statement refuting her allegations as they were published in a Philadelphia Magazine article.

She joins three other women who have also sued for defamation under similar grounds. See the New York Times coverage, “Bill Cosby Faces New Suit for Saying Accuser Lied.”

Note that this civil lawsuit is asserting libel based upon Cosby’s criminal attorney issuing a press release that explained his client was denying he committed the crime of sexual assault.

2. What is Sexual Assault in Texas?

Texas Penal Code Section 22.011 defines “sexual assault” as different kinds of crimes. It includes rape (strangers) as well as date rape (relationship). Sexual assault charges in Texas also include things like prostitution; child molestation; possession of child pornography; and more. Sexual assault is a 2nd degree felony in Texas with a maximum sentence of 20 years behind bars.

Aggravated sexual assault is a 1st degree felony that can result in life (99 years) imprisonment. Aggravated sexual assault involves violent circumstances like the threat of death or where a weapon is involved.

CRIMINAL DEFENSE OF SERIOUS ASSAULT CHARGES IS COMPLICATED

If you are being investigated for any type of assault charge in Texas — or if you just have to deal with rumors and gossip circulating in social media, as an “informal investigation” of sorts, then the defense against assault charges is much more complex than it was in the past, even a few years ago.

An experienced criminal defense lawyer must consider how to protect the legal rights mandated by the federal and state constitutions against not only things like prosecutorial misconduct and tainted evidence coming out of bad crime labs. Today, there is another level to defending people who have been charged with crimes that get lots of web interest — like domestic violence and sexual assault.

Justice? Mercy? A much bigger fight now than ever before.

For More Information About Assault Charges In Texas, See Our Web Resources Page, As Well As Michael Lowe’s Case Results And His In-Depth Article, “Top 10 Mistakes In Sexual Assault And Indecency With A Child Cases.”