By Collin County Criminal Defense Lawyer Jeremy Rosenthal
Possibly, but it mainly depends on the prosecutor.
A criminal assault or family violence charge in Texas is a proceeding between the State of Texas and the accused. The accuser is mainly treated as a witness. The decision to prosecute is squarely on the prosecuting attorney.
This is typically a policy driven area with prosecutors. District and County Attorneys are elected officials in Texas and none want to look weak on this sort of matter.
Affidavits of Non-Prosecution
Many criminal defense attorneys or prosecutors ask that alleged victims that wish to drop charges fill out an “affidavit of non-prosecution.” That is a statement under oath which gives the alleged victims reasons for not wanting to prosecute. An affidavit of non-prosecution does not bind the prosecutor or the judge to dismiss the case.
If the accuser is considering filing an affidavit of non-prosecution, that statement is almost always a statement under the penalty of perjury.
If the alleged victim gives an inconsistent account in the affidavit as she did to the police — he or she may be guilty of giving a false statement to a police officer.
It is crucial for the alleged victim to know that defendant’s lawyer is not their lawyer. In fact, that lawyer has a direct conflict of interest in advising them. It is not imprudent, improper, or uncommon for the alleged victim to have their own attorney in these situations.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice, please consult an attorney.