Domestic Violence Charges – Blog 5:  Affirmative Findings of Family Violence

December 16, 2020

By Texas Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

A major component of what makes domestic or family violence severe criminal charges in Texas are affirmative findings of family violence.  An affirmative finding of family violence (AFFV) is a declaration sought by the prosecution and made by a judge which triggers additional collateral consequences above and beyond a regular assault case.

An AFFV can be made by the Court whether the case was a guilty plea, no contest plea, or whether the accused was found guilty.  They can even apply to fine-only misdemeanor class c charges.

For more reading on other aspects of domestic violence charges you can go here.

Consequences of an Affirmative Finding of Family Violence

Enhancement

A second arrest for domestic violence charges can be elevated from a class a misdemeanor (Up to a year of county jail and up to a $4k fine) to a Third Degree Felony (2 – 10 years in the Texas Department of Corrections and up to $10k fine).

The family member doesn’t have to be the same person.  In fact, a common scenario I see is someone who at times decades before had plead guilty to what they thought was a traffic level offense of getting into a fight with a parent, sibling or spouse to pay the fine and move on.  Then upon the subsequent arrest – they are hammered with a felony charge.

Inability to Non-Disclose Criminal Charges

The affirmative finding bars non-disclosure or hiding the case from the public once the case is over.  Not only this, but a popular argument I’ve seen prosecutors make is they believe the Texas Legislature intended to create a specific class of offender with the AFFV who is not eligible for non-disclosure in any cases at all that person may have been arrested for.

Here’s an example:  A person pleads guilty to domestic violence and gets deferred in the year 2010.  In 2020 they are arrested and plead guilty for DWI and otherwise qualify for non-disclosing the DWI to hide that arrest from public view.  The prosecution can argue (with varying degrees of success) the person isn’t eligible to non-disclose the DWI because of the DV plea from 2010.

Firearm Ownership

Both Texas and Federal law can restrict your rights to firearm possession and ownership.  Federal law prohibits those convicted of domestic violence from possession.  Texas – and perhaps other states – restrict rights for possession for special permitting to carry firearms.

Divorce, Custody and Adoption Issues

A person with an affirmative finding of family violence cannot be named a managing conservator of a child or a joint managing conservator of a child.  It goes without saying this can be the most devastating consequence of them all because it could mean losing your children in a divorce proceeding.

The Shattered Glass Effect – Indirect and Collateral Consequences 

I’ll go geek lawyer for a second — criminal charges have what we call “direct” consequences and “collateral consequences.”  An example of a direct consequence of an affirmative finding of family violence would be a subsequent charge can be enhanced.  It’s predictable and fairly certain to happen upon a 2nd arrest.

But what about getting fired from a job 8 years later?  Can the legislature change the law for the worse 15 years from now and will it affect someone?  How others view criminal charges over time is thoroughly unpredictable.  We just know it can be bad.

I call remote collateral consequences the “shattered glass” effect.  We simply can’t predict them.  Affirmative findings have far reaching consequences which we just can’t calculate.

*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.

 

 

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Domestic Violence Charges – Blog 4:  Different Charges and Punishment Levels

December 15, 2020

By Texas criminal defense lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

I’m dedicating the next few weeks to blogging about defending domestic and family violence charges.  In those blogs I’m discussing here and there the different charge and punishment levels of different assault cases but it’s not particularly reader friendly.  Taking inventory of the different levels of punishment can be confusing so I thought I’d dedicate a blog to giving folks a straightforward index to the most common assault and domestic violence arrest scenarios.

So here it is.

Assault by offensive or provocative contact:

  • Class c misdemeanor (fine only);
  • Prosecuted in city court or in a Justice of the Peace Court;
  • Can be prosecuted by municipal prosecutor (city court) or district attorney’s office (JP Court);
  • Can still be subject to an affirmative finding of family violence.

Assault by threat:

  • Class c misdemeanor (fine only);
  • Prosecuted in city court or in a Justice of the Peace Court;
  • Can be prosecuted by municipal prosecutor (city court) or district attorney’s office (JP Court);
  • Can still be subject to an affirmative finding of family violence;
    • Occurs where someone threatens another with imminent serious bodily injury or death;
  • Can be subject to an affirmative finding of family violence;

Assault causing Bodily Injury:

  • Class a misdemeanor (up to 1 year of jail, fine not to exceed $4k);
  • 3rd degree felony with prior affirmative finding of family violence (2-10 years TDC & fine not to exceed $10k);
  • Prosecuted by District Attorney’s Office;
  • Jurisdiction in County Court at Law if charged as a misdemeanor;
  • Jurisdiction in District Court if charged as a felony;
  • Occurs where there is assault causing bodily injury;
    • “Bodily injury” is physical pain, impairment of physical condition or illness
  • Subject to affirmative finding of family violence.

Violation of a Protective Order

  • Class a misdemeanor (up to 1 year of jail, fine not to exceed $4k);
  • Prosecuted by District Attorney’s Office;
  • Jurisdiction in County Court at Law;
    • Occurs where a person violates an Emergency Protective Order
  • Penalties can be more severe if more frequent violations/ and or violence occurred during the violation.

Assault by Choking (impeding the airway, normal breathing or blood circulation in the neck);

  • 3rd Degree Felony (2-10 years TDC & fine not to exceed $10k);
  • Prosecuted by District Attorney’s Office;
  • Jurisdiction in District Court;
    • Occurs where a person impedes 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;
  • Subject to affirmative finding of family violence;

Continuous Violence Against a Family Member;

  • 3rd Degree Felony (2-10 years TDC & fine not to exceed $10k)
  • Prosecuted by District Attorney’s Office;
  • Jurisdiction in District Court;
    • Occurs where a person commits two or more acts of assault causing bodily injury against a family member in a 12-month period;
  • Subject to an affirmative finding of family violence.

Aggravated Assault (Serious Bodily Injury)

  • 2nd Degree Felony (2-20 years TDC & fine not to exceed $10k);
  • Prosecuted by District Attorney’s Office;
  • Jurisdiction in District Court;
    • Occurs where a person causes serious bodily injury injury (SBI)
    • SBI is injury with a substantial risk of death, serious permanent disfigurement, or protracted loss or impairment of bodily member or organ
  • Subject to affirmative finding of family violence;

Aggravated Assault (Use or Exhibit of a Deadly Weapon)

  • 2nd Degree Felony (2-20 years TDC & fine not to exceed $10k);
  • 1st Degree Felony (5-99 years or life & fine not to exceed $10k) if deadly weapon used in conjunction with serious bodily injury of a family member;
  • Prosecuted by District Attorney’s Office;
  • Jurisdiction in District Court;
    • Occurs where a person ‘uses or exhibits’ a deadly weapon in the commission of an assault
    • The assault is often assault by threat when a weapon is used to threaten
  • Subject to affirmative finding of family violence;
  • More legally complicated to qualify for probation or deferred adjudication;
  • Not eligible for parole unless 50% or more of the sentence is fulfilled.

*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.

 

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Domestic Violence Charges – Blog 3: What Constitutes a Dating or Household Relationship?

December 14, 2020

By Texas Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

There are two legal components to assault/ family violence cases.  The first I discussed yesterday when I generally outlined what the legal definition of assault was.  The second component is what constitutes a household or dating relationship?

If there is a “household or dating relationship” it triggers an “affirmative finding of family violence” or “AFFV”  This is what separates domestic assaults legally from ordinary assaults.  The AFFV is what gives spousal or domestic abuse the additional severity.

The Legalese of Affirmative Findings of Family Violence

Texas Code of Criminal Procedure Article 42.013 requires a court to make an affirmative finding of family violence if the offense constituted family violence under Texas Family Code. 71.004.

Turning to the definition of 71.004, family violence is defined as:

(1) an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself;
(2) abuse, as that term is defined by Sections 261.001(1)(C), (E), (G), (H), (I), (J), (K), and (M), by a member of a family or household toward a child of the family or household; or
(3) dating violence, as that term is defined by Section 71.0021.
Digging into Tex.Fam.C. 71.0021, it is very clear the relationship includes persons who are currently engaged in a dating relationship as well as from a relationship in the past:
(a) “Dating violence” means an act, other than a defensive measure to protect oneself, by an actor that:
(1) is committed against a victim or applicant for a protective order:
(A) with whom the actor has or has had a dating relationship; or
(B) because of the victim’s or applicant’s marriage to or dating relationship with an individual with whom the actor is or has been in a dating relationship or marriage; and
(2) is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the victim or applicant in fear of imminent physical harm, bodily injury, assault, or sexual assault.
(b) For purposes of this title, “dating relationship” means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of:
(1) the length of the relationship;
(2) the nature of the relationship; and
(3) the frequency and type of interaction between the persons involved in the relationship.
(c) A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a “dating relationship” under Subsection (b).
In Plain English
In the vast majority of cases there is no issue as to whether this is domestic violence or not.  But the matter can get cloudy.  What about roommates?  There are no cases reported where a complaining witness is a roommate, but legally the point could be debatable.  Also, the term “family member” can mean adult children who no longer live within the house.  So a fistfight between adult siblings or parents at the family Christmas party could be considered domestic violence.
*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.

 

 

 

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Domestic Violence Charges – Blog 2:  What is an Assault?

December 13, 2020

By Texas Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

To understand domestic violence charges, it begins with understanding their main legal components.

There is an assault and along with the assault, the prosecution attempts to seek an affirmative finding of family violence.  The law and ingredients of assault itself do not change merely because of the relationship of the accuser and the accused.

My goal today is to give a very broad perspective on the assaultive component exclusively so the readers can understand generally how these codes work together in my continuing series about domestic violence charges.  Assault cases, however, each have unique nuances which could take them out of some of my broad generalizations.

Assault is a Result Based Offense

All crimes have what are known as elements – or units of proof.  Elements are a checklist of everything which must be proven to a jury beyond a reasonable doubt if the State is seeking a conviction.  Assault is generally covered by Texas Penal Code Chapter 22.  The assault family of criminal charges are easy to understand because with only a few exceptions – every element is the same except for one.  The element which is different is the result or what type of harm the assault inflicts.

The elements of assault in Texas are:

  • The defendant (identity);
  • on or about a certain date;
  • in the county where venue is sought;
  • in the state of texas;
  • Knowingly, intentionally or recklessly caused;
  • Some type of harm –
    • Offensive contact (class c misdemeanor – fine only)
    • Bodily injury (class a misdemeanor – up to 1 year county jail)
    • Serious bodily injury (2nd degree felony – 2 to 20 years TDC)
    • Death (Murder has it’s own family of charges – but homicide is essentially assault which causes death).

An example I give my clients is this:  Let’s say I punch someone in the arm.  If it just annoys the victim then I’ve committed a class c offensive contact assault.  If it causes them to say ouch then I’ve committed a class a assault with bodily injury.  If the punch causes them serious bodily injury then I’ve committed a 2nd degree felony (aggravated assault) and if the punch causes them to die, then I’ve committed some type of homicide.

The action remains the same – and only the result of the action is different.  But it is the result which dictates the level of charge hence assault is a result based offense.

Further Defining the Degrees of Harm

Offensive contact is legally defined as contact which would be considered offensive or provocative.  An example could be spitting on someone.  In reality we see “offensive contact” in cases where the police don’t think much of an assault so they list some type of grabbing or pushing as “offensive” rather than causing bodily injury.

Bodily injury is legally defined as physical pain, illness, or any impairment of physical condition.  Most domestic violence arrests fall in this category.

Serious bodily injury is defined as injury which creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

Slight variations on Assault General Rules

A few charges were crafted differently by the legislature in Texas.  I’ll cover those later on in this series as well but assault by threat, assault by impeding breath or choking, and aggravated assault with a deadly weapon are also assault offenses but those are defined by the manner in which they are committed in addition to the result.

Assault Charges Allow for the Same Defenses

I’ll be discussing defenses to assault charges later in this series too.  But it is worth noting that all of the defenses to assault such as self defense or consent are to some degree applicable regardless of the result.

*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.

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Domestic Violence Charges – Blog 1: Overview and Index

December 12, 2020

By Texas Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Today I’m starting a series of articles discussing the legal aspects of family assault cases in Texas.  My goal with these blogs – as is my goal with all blogs – is to convey as much accurate information in a user friendly format as I can without overloading the reader.

Domestic violence has been a very hot topic before the COVID-19 pandemic and the issues have only become more exacerbated since the all of the lockdowns, school closings, and sheltering-in-place the pandemic has triggered.  Arrests for domestic and family violence are like a hand-grenade which is rolled into the living room which can threaten to make what is often already a dysfunctional situation worse.

I find domestic assault arrests also to be the most commonly underestimated arrest by folks ensnared in these situations.  I hope to give some of the complexity context in this series too.

DV Cases: A 40,000 Foot View

The most defining aspect of domestic violence cases from a lawyer’s standpoint is the “he said/ she said” nature of the allegations. This sounds simple but we just don’t see this dynamic much in charges such as DWI, theft, or drug possession.  Even crimes against children are somewhat different because in those cases the allegations can be from years past and there are vast differences in the sophistication levels of accusing child and accused adult.

A family assault arrest typically comprises of police showing up to someone’s house after a 911 call to find the folks huffing and puffing, often bleeding, and sometimes impaired.  The police are then asked to restore the peace and unwind, diagnose, then make a judgement call about who in a complicated relationship sometimes spanning decades is an aggressor.  Then the legal system takes hold making the web seemingly unmanageable.

Very few cases also have the level of disagreement between prosecutors and defense lawyers than assault of a family member as well.  Prosecutors and defense lawyers fight over what happened at any particular incident, the very nature of a complex or long relationship and what should be done in terms of long term solutions whether a dating couple remains together or not.  Further domestic violence charges carry additional penalties which up the ante in defending them.

My Blog Series on Assault Against a Family Member

I’ll break this down into several components in this series so they make sense.  First, I’ll cover the technical aspects of the laws and specific charges:

Defenses Common in Family Abuse and Assault Cases:

Common Prosecutorial Views/ Tactics in DV Cases:

Defending Domestic Violence Charges

*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.

 

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