Domestic Violence Charges – Blog 10:  Asserting a Legal Defense to Assault

December 21, 2020

By Texas Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

There is no area in Texas criminal law where understanding how defenses work is more important than in assaultive cases.

The goal of today’s blog in my continuing series on defending domestic violence charges is to provide an analytical framework to help understand how defenses such as self defense, consent, necessity or even insanity fit in to and acquit someone in an assault case.

The Jury Charge

In law school they teach us to plan backwards for trial.  We start with what is known as a jury charge.  The jury charge is the 3, 4 or 10 pages of instructions given to the jury when they deliberate by the judge.

The main goal when you assert a defense in a criminal case is to have the judge instruct the jury that if your defense has enough merit – you win.  A defendant does not have to assert a defense – but if they do – it will not be in the jury charge unless there is evidence supporting the defense.

A jury charge in an assault case where defenses have been proffered can read like a tennis match.  If the prosecution has proven x, but because of the defense you believe y then you shall acquit the defendant.  Without the defense in the jury charge it would simply read “if the prosecution has proven x then you shall convict.”

General Defenses vs. Affirmative Defenses

Here’s the super confusing stuff – and I’ll make it as simple as possible.  Almost all defenses in an assault case will be an affirmative defense.

An affirmative defense relates to excused conduct and a general defense relates to an inability to understand one own actions.

Affirmative Defenses

Affirmative defenses require the defense to prove enough facts to the judge so that he/she puts it into the jury charge at the end of the trial.  Those facts usually admit the crime but offer a reason or justification (such as self defense, consent, or necessity).

If defendant is able to raise the affirmative defense, then the judge instructs the jury that the prosecution must DIS-prove the defense beyond a reasonable doubt.  This is a very high burden for the prosecutor to do.

So for a self defense case – the prosecution in addition to having to prove all of the basic elements of assault were proven beyond a reasonable doubt now has an additional set of elements they must disprove:  that it was self defense.

General Defenses

These typically include insanity, mistake of law, mistake of fact, duress and entrapment.  They all essentially go to “did the defendant know what they were doing was wrong” or in some instances was the defendant’s will simply over-powered.

The defense has the burden to prove in these cases by a preponderance of the evidence their defense is true.  The burden doesn’t shift to the prosecution unlike in affirmative defenses.

So Here’s How this Works:

 

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters.

 

Comments Off on Domestic Violence Charges – Blog 10:  Asserting a Legal Defense to Assault | Assault, Collateral Consequences of a Criminal Record, Deadly Conduct, Divorce related crimes, Domestic Violence, Emergency Protective Orders, Self Defense, Uncategorized | Tagged: , , , , , , , , , , , | Permalink
Posted by niftybrady

Domestic Violence Charges – Blog 9:  Violation of a Protective Order

December 20, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Domestic assault charges are bad enough but those charges come with the ability to often defend the case over things such as exaggerated accusations, self-defense or consent.  Violation of a Protective Order, by contrast, is not only more cut and dry factually but it also threatens some of the leniency we might be seeking.

VPO charges typically only hinge on whether the accused made contact with the complaining witness which can simply be proven-up by phone or text records.  Or, if the accused came to the house and wasn’t supposed to be within 200 yards then the case is as simple for the prosecution as calling the complaining witness to testify about it or a police officer if one was called to the scene.

It is often the case where, ironically, the underlying assault is easier to deal with than the Violation of a Protective Order charge.

Notice

One key component of VPO arrests is the prosecution does have to prove Defendant had notice of the order.  The order is typically done by a magistrate judge while the person is in custody for the assault.  The order is often placed in the person’s property as they are leaving the jail for the assault arrest.

I’ve unfortunately seen many VPO charges based on the accused being released from jail and then calling the complaining witness from the hallway in the jail as they are leaving.

Penalties for Violating a Protective Order

VPO is generally a class a misdemeanor punishable by up to 1 year in the county jail and a fine not to exceed $4k (the same as the most common arrest for domestic violence – assault causing bodily injury).

Multiple violations of a protective order obviously up the ante and make it a felony.  Tex.Pen.C. 25.072 make repeated protective order violations a 3rd degree felony (between 2 and 10 years TDC).  This is if a protective order has been violated two or more times.

The “Protected Person” Cannot Invalidate or Give Permission to Violate

The legislature requires a specific admonishment be in all protective orders.  They anticipated almost all common scenarios and cut them off as defenses for those accused. Specifically that no person can give permission to violate the protective order.

A more confounding issue is what happens when the protected person is the one who continually attempts and solicitations the violation of the protective order.  Does it make that person a co-conspirator?  A party to the offense?  The issue can be really confounding.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Super Lawyer by Thomson Reuters.

 

 

Comments Off on Domestic Violence Charges – Blog 9:  Violation of a Protective Order | Collateral Consequences of a Criminal Record, Deadly Conduct, Divorce related crimes, Domestic Violence, protective order, Uncategorized, violation of a protective order | Tagged: , , , , , , , , , , , , | Permalink
Posted by niftybrady

Domestic Violence Charges – Blog 8: Emergency Protective Orders (EPOs)

December 19, 2020

By Texas Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

An unpleasant surprise many men and women get when they are released from jail after an assault/ family violence arrest is an order forbidding them from returning home and/or even talking with their spouse or children.

These orders can cause daunting collateral consequences.  They are financially punishing because it often requires one person stay in a hotel during the duration and they are emotionally taxing because one parent may need support in caring for children and assistance with the household.  Sometimes protective orders have the opposite of their intended effect and inject more stress into a relationship instead of relieving it.

The court order can either be an Emergency Protective Order or it can be a term and condition of bond.  In any event, violating them can and often does land the person back in jail.  Violating a protective order is a criminal offense in itself and is usually harder to win in court than the underlying assault case.

Protective orders and emergency protective orders is an extensive topic in and of itself.  Today in my continuing series of blogs on defending domestic violence cases I’ll be hitting the main highlights.

Emergency Protective Orders

Most emergency orders are sought and applied for by officers in an Ex Parte manner – that is it’s the officer alone asking the judge who is typically also setting bond.  It could be because of department policy or the officer thought the situation merited the couple having a “cooling off” period.  EPOs are mandatory for arrests with charges of serious bodily injury or deadly weapons.

On an administrative note – the EPO does not apply to the person’s attorney who can communicate with a complaint witness.

The governing statute for protective orders is Article 17.292 of the Texas Code of Criminal Procedure.

It is often the case the complaining witness doesn’t want the EPO either.  In this regard the law can be somewhat patronizing.  The complaining witness’ assent is not mandatory.

One of the most embarrassing and humiliating aspects of an EPO is the Court is required to give notice by law to a school of a child of the couple.

Modifying Protective Orders

The legislature requires a hearing for modification of an EPO under 17.292(j).  All affected parties are required to have notice.  Most hearings are somewhat informal.

My experience on modifying protective orders is unless both the accuser and the accused agree – the magistrate won’t modify the order.  Most magistrates also drag their feet because they want a cooling down period between the couple… so even though a person might apply for a modification in the day or two following the arrest – you usually won’t get a hearing for 2 weeks.

Can Protective Orders become Permanent or be Extended?

Yes.  An Ex Parte Emergency Protective Order can be issued for a maximum of 91 days.

In those instances where a prosecutor or complaining witness want to seek a more extended one – the prosecutor can file suit on behalf of the complaining witness and apply for a permanent or extended protective order.

These proceedings are legally more formal and the consequences can be more dire.  If a court makes a finding of domestic violence it can follow the accused forever.

Conditions of Bond Keeping Defendant Away

I mentioned earlier another legal tool keeping someone a certain minimum distance from the complaining witness or preventing communication can be a term and condition of bond.

That means it’s one of the ground-rules laid out by the judge as a condition of release from jail.  Violating a condition of bond means potential re-arrest.  Domestic violence bond violations are the only misdemeanor charge where a judge can hold a person without bond.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is designated as a Texas Super Lawyer by Thomson Reuters.

 

 

Comments Off on Domestic Violence Charges – Blog 8: Emergency Protective Orders (EPOs) | Assault, Collateral Consequences of a Criminal Record, crimes against children, Deadly Conduct, Divorce related crimes, Domestic Violence, Emergency Protective Orders, Uncategorized | Tagged: , , , , , , , , , , | Permalink
Posted by niftybrady

Domestic Violence Charges – Blog 7: Aggravated Assault with a Deadly Weapon

December 18, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Most aggravated assaults with a deadly weapon are where someone threatens a person with something like a knife, gun or some other object.  We see domestic cases frequently where the police arrest a spouse or partner who grabbed something like a scissors or a kitchen knife during a heated argument and was alleged to threaten the other.

Aggravated Assault with a deadly weapon is a charge which leaves a mental impression by its name that doesn’t always match reality.  For that reason, I’ve worked with lots of folks who were stunned to have been charged with it.  It goes without saying aggravated assault with a deadly weapon cases can also be far more serious than simply one spouse being momentarily threatened by an object.

Like choking, it is an assaultive offense which is based on it’s conduct as much or more than the result – which is why I wanted to talk about it separately in my continuing series of blogs about defending domestic violence.  Most assault offenses are strictly result-based.

The Law on Aggravated Assault with a Deadly Weapon

This charge is committed where someone uses or exhibits a “deadly weapon” during the commission of an assault.  A “deadly weapon” under Texas law is any item for which the use or intended use could cause serious bodily injury or death.

Remember, an “assault” can be a situation where there is physical contact – or where there is an imminent threat.  So a situation where a knife, gun, scissors, an ash tray, a picture frame, a vase, or anything else are used to threaten another person – it could be construed as aggravated assault with a deadly weapon.

Another area of confusion on these cases is whether the deadly weapon is used “during the commission” of an assault.  Let’s say someone has a weapon at one point during the incident but the assault occurs at a different point.  For instance, a couple is arguing and one has a weapon in their waistband.  The weapon is never displayed.  Moments later that partner hits the other one with their hand.  Many prosecutors would argue the weapon was used “during the commission” of the assault hence aggravated assault with a deadly weapon.

Aggravated assault with a deadly weapon is a 2nd degree felony and punishable between 2 and 20 years in prison and a fine not to exceed $10,000.

Folks who do plead guilty or are convicted o aggravated assault with a deadly weapon can still be given deferred adjudication or probation.  The charge, however, does limit eligibility and defendants who go to trial must have a jury approve probation – and the accused cannot have been convicted of a felony in this state or any other state.

Good News/ Bad News with Agg. Assault w/ Deadly Weapon

The good news with these types of charges is it can be easy to carve out lesser-included offenses.  That means at trial a jury frequently has the opportunity to acquit someone of the higher offense and potentially convict of a misdemeanor assault instead.

The flip side of the coin — the bad news — is for the same reason aggravated assault with a deadly weapon give the prosecution lots of plea bargaining leverage.  They can take a weak aggravated assault with a deadly weapon case and make into a strong misdemeanor or lower felony charge.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of legal specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters.

 

Comments Off on Domestic Violence Charges – Blog 7: Aggravated Assault with a Deadly Weapon | Assault, Deadly Conduct, Divorce related crimes, Domestic Violence, Emergency Protective Orders, Self Defense | Tagged: , , , , , , , , , , , | Permalink
Posted by niftybrady

Domestic Violence Charges – Blog 6: Impeding Breath or Circulation (Choking)

December 17, 2020

By Texas Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

In 2009 the Texas Legislature carved out the specific new criminal offense of choking and made it a 3rd degree felony.  Texas Penal Code 22.01(b)(2)(B) is today’s topic in my continuing series on defending domestic violence charges.

The prohibition against impeding breath or circulation of the airway is legally unique insofar as it is a departure from the charge from being result-oriented and makes it conduct oriented.

Tex.Pen.C. 22.01(b)(2)(B) reads accordingly:

…the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth.

Choking is Hard to Prove

A challenge prosecutors and police have is choking is a hard offense to prove medically or physically.  Only 16% of cases present with major significant medical injury according to one study.  62% of cases present with no visible injury at all and 22% of cases had only minor injuries such as red marks or scratching.  The experts I’ve heard testify in the field claim it’s due to the soft tissue and muscle in the neck.

Things I See In Choking Cases

When police go to the scene of a domestic situation – they know the law and they know what evidence they need to make an arrest.  They fish for magic words they need to make an arrest…

“Did it cause pain…?”

“Did the contact offend you…?”

“Did it impede your airway…?”

Police know choking is a higher charge and they’re specifically looking for this.  It’s not uncommon, then, for us to see pictures of complaining witness’ necks with little or no evidence of trauma.

Blind Lumpers

Another trend I’ve noticed in DV cases are what I call “blind lumpers.”  I’ve even written an article on it published in Texas Criminal Defense Lawyer’s Voice for the Defense Magazine.

A blind lumper is an expert witness who doesn’t know any specifics of the case (blind), and they lump all person’s charged with domestic violence into one neat and convenient pile (lumpers).

Translation:  a medical professional takes the witness stand and says “I don’t know anything about this case… but just because there’s no evidence of choking doesn’t make him innocent.”

This type of testimony — while true — is mainly calculated to take evidence of innocence (no marks on a neck) and turn it into a tie.  Do you know what the neck of someone who didn’t get choked would look like?  It wouldn’t show any marks either.

Impeding the Airway is a Legally Quirky Charge

A final note about choking cases is this – because it’s not result oriented, courts find it difficult to square it with other assault oriented offenses.

Here’s what I mean – because assault charges are typically result based, if the prosecution can’t prove the higher level assault they can often still prove a lesser one.  For example if the prosecution alleges aggravated assault because of serious bodily injury – but at trial the jury only believes there was bodily injury then the jury could still convict defendant if given the option for what is known as a lesser-included offense.

Because choking is focused on manner in which the assault occurred – the prosecution risks an all-or-nothing allegation at trial.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is designated as a Texas Super Lawyer by Thomson Reuters.

Comments Off on Domestic Violence Charges – Blog 6: Impeding Breath or Circulation (Choking) | Collateral Consequences of a Criminal Record, Deadly Conduct, Divorce related crimes, Domestic Violence, Emergency Protective Orders, Murder, Police and Prosecutors, Self Defense, Uncategorized, Weapons | Tagged: , , , , , , , , , , , , | Permalink
Posted by niftybrady

« Previous Entries
Next Entries »