TOP 10 MISTAKES DEFENDING TEXAS FAMILY VIOLENCE CASES
Posted on by Michael Lowe.
Texas Family Violence Defendants: Ten Mistakes in Defending Family Violence Charges
As a Texas Board Certified Criminal Defense lawyer who has practiced criminal law in Dallas for over two decades, I have seen all sorts of errors committed both by prosecutors and defense counsel in family violence cases. However, some mistakes seem to happen with great regularity; so much so, that I’ve created this list of the Top Ten Mistakes made in defending people accused of violent acts in family or domestic violence situations.
From my perspective and experience, here are the ten most common errors made in defending family violence cases in Texas:
1. Take the first offer.
As a former chief prosecutor of an Assault family violence court in Dallas County, I can assure you that the offers will get better. Don’t ever accept the first thing the DA offers on your case.
I’ve handled thousands of these cases and I’ve never seen the offers get worse instead of better over time. The State’s evidence generally gets worse over time. Typically, witnesses forget what happened, or they can’t be located. It’s very common for the complaining witness to change his/her mind about whether to prosecute the case at all. Of course, this isn’t a get out of jail free card, but it can help.
If you aren’t getting an offer that makes it possible to have your record expunged later on, you should probably set your case for trial. Setting the case for trial will get the DA’s attention on your case for sure.
Most prosecutors don’t look carefully at their cases until they are set for trial. Mostly, they aren’t even thinking about how they will prove their case until one week before trial. It’s a numbers game. They can’t keep up with their case load so they prioritize their attention to those cases set for trial.
2. Take deferred adjudication.
For most other criminal cases, deferred adjudication can be a very good option. In other types of cases, it can enable someone to get their record cleared up later on. However, cases involving family violence are different.
Your lawyer needs to fully understand the Texas Nondisclosure laws. I am the only attorney in Texas that has ever successfully appealed a Nondisclosure; consequently, I have taught other attorneys at CLE (continuing legal education) seminars how to do get their clients’ records sealed. You can read that case, Fulgham v. State of Texas, 170 S.W.3d 836 (Tex.App.- Corpus Christi-Edinburg, 2005), in my digital library.
You need to look at 411.081(e) of the Texas Government Code. Any case “involving family violence as defined by 71.004, Family Code” makes the nondisclosure applicant INELIGIBLE for any nondisclosure thereafter, which includes the immediate offense of assault family violence.
This means that even though you are getting a deferred, you cannot get your record cleared up, EVER! Not only that: it’s the gift that keeps on giving. That is, any case involving family, whether it’s a deferred or a conviction, disqualifies the applicant for any other case may get in the future.
Of course, the same rule applies for any offense that statutorily requires registration as a sex offender. (Isn’t that nice?) The Texas legislature puts family violence defendants in the same boat with sex offenders. I don’t want to get into the definition of family violence because that would be a whole other topic. Suffice it to say that the definition is much broader than you probably think and it doesn’t really mean “family.”
One of the most common errors I see other lawyers make is that they think if the judge doesn’t make a “finding of family violence” then their client can be eligible to get their record cleared up. If you’ve read this read far, then you know those lawyers are screwing their client’s cases up big time. As long as the case “involves” family violence, the client is ineligible. There’s no requirement that a find be made; end of story.
So the bottom line is that you can’t take a deferred adjudication on a Class “A” misdemeanor family violence Assault case, or any other Family Violence case like Aggravated Assault, Impeding Airflow, Assault F/V with a prior conviction or Continuous Assault Family Violence under Penal Code 22.10 (b) or (b-1).
3. Affirmative Finding is never a legitimate bargaining chip.
If you’ve read this far, then you know why the affirmative finding of family violence is useless when it comes to a defendant’s record. It simply doesn’t matter. See number 2 above for an explanation.
4. Never set case for trial.
I’ve explained this one in number 1 above. Bottom line, the prosecutor isn’t going to give you best offer unless you are willing to fight or your lawyer has a reputation for fighting and winning.
5. Don’t get the 911 tape.
The 911 tape is very important in a family violence case. This is because of Crawford vs. Washington. I’ve prepared an online legal procedure guide for folks charged in Family Violence Assault cases.
In my guide I explain in detail the ramifications of Crawford and some of the Texas cases that interpret the meaning of “testimonial.” Your lawyer needs to be expert on this area of law, as I am.
This is important stuff because it affect whether or not you can exercise your sixth amendment right to confront and cross-examine a witness in open court. There as several Texas cases holding 911 tapes are mostly non-testimonial. This means they are coming into evidence if the State can otherwise authenticate the voices and your lawyer can’t come up with any other objections as to why some of the tape’s content ARE testimonial.
There are some good arguments to be made to keep this statement out of evidence, but I don’t want to go too far off course here. All you need to know is that the 911 tape can be used against you even if your complainant spouse, girlfriend or boyfriend isn’t otherwise available to testify.
Your lawyer needs to get a copy of the tape and you need to ask him whether it’s going to be admissible at trial against you. If he can’t answer these questions, find another lawyer.
6. Don’t contest the protective order.
I go into this in much greater detail in my Family Violence guide, but it bears repeating. In many family violence cases, the District Attorney’s office will serve you with a Petition alleging that you committed family violence and they are seeking a court order to keep you away from the so called “victim.”
This petition is filed pursuant to Texas Family Code section 85.022 claiming that family violence occurred in the past and is likely to occur in the future as well. Texas Family Code section 85.001. The order is good for up to two years. The order will also revoke your concealed handgun license.
The judge will also make you complete a Battering Intervention and Prevention Program (BIPP). This is a 6 months affair and can be a huge pain in the butt to finish, especially if you have a job and need travel. I have gotten some excellent discovery at these hearing. The state will be required to put on their evidence concerning family violence.
Because the state is also required to demonstrate that family violence will happen in the future, the “victim” tends to exaggerate his/her claims of family violence. Of course, I want them to exaggerate their claims, so I can show that they are lying and can use that later on at trial.
Furthermore, I can and have successfully subpoenaed police officers to testify favorably for my client at these hearings. This hearing is a great opportunity for the Defendant and should never be ignored. If you don’t show up, the judge will take a default order against you and order you to attend BIPP. You can’t go down like that!
7. Choking or Impeding Airflow cases MUST involve a “family member.”
I have been seeing more and more choking or impeding airflow cases filed. It seems like the police officers in North Texas are being trained to get the complainant to say they were choked even when the Defendant never laid a hand on their neck.
Aside from the normal problem the State has with case later on at trial, one thing they often overlook is that these cases MUST involve a family member. Well, this should be obvious, right?
Nope. I represented an SMU student that allegedly choked his suitemate in the dorm room. I got his impeding airflow case no billed, not because my client didn’t choke his suitemate, but because they weren’t “family members” under the family code 71.004.
Bottom line: It MUST be shown that the Defendant and complainant were members of the same “household” as defined by the Texas Family Code 71.005.
8. Do your Crawford vs. Washington homework.
I am sure you’ve noticed by now that I mention this case, Crawford vs. Washington, a lot. It’s for good reason. It is very common for witnesses to become “unavailable” when the trial date comes. I won’t go into much more detail here since I cover this issue very well in my in-depth article on legal procedures in assault and family violence cases.
You need to fully know whether and to what extent out of court hearsay statements can be used against you at trial. I have tried many of these family violence cases.
There hasn’t been a single Assault case I haven’t tried where I didn’t carefully consider the evidence admissibility issues related to hearsay both as a Family Violence DA and as a Board Certified Criminal Defense Lawyer.
9. Just get the affidavit of non-prosecution signed and it’s over, right?
Well, it’s not that easy. First of all, the affidavit has no legal effect. I explain why in my Family Violence guide.
However, if you are a complainant and you think you are going to help your loved one by signing the State’s affidavit of non-prosecution, think again. The primary purpose for the state offering the affidavit of non-prosecution is to “counsel” you to cooperate with them. They will want to know where you are living, where you work, who your immediate local family members are.
Why? So, they can subpoena you and force you to testify against your loved one. If the affidavit can’t help and it can potentially hurt your loved one, you might reconsider. Family violence cases are rarely as simple as: step (1) sign affidavit of non-prosecution, step (2) case dismissed. There a lot more to it than that.
10. Hiring your divorce lawyer to handle your criminal family violence case.
This is not a criticism of divorce lawyers. I know some very fine ones. However, they have no idea what they are doing in criminal cases.
The rules of procedure are totally different and there’s this strange group of folks gathering in the hallway before trial called “jurors.” That’s right. Divorce lawyers rarely, if ever see a real jury trial. The only issue that a jury can decide in a divorce case is child custody, some asset valuation and geographic restrictions on where your former spouse can live. Family law attorneys rarely, if ever, are called to resolve issues concerning family violence in front of a jury.
Having said this, it is very common for me to see divorce lawyers at the courthouse handling very serious family violence cases. I don’t mind lending them a hand but it’s really best left to the criminal defense experts, in my opinion.
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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