Domestic Violence Charges – Blog 12:  The Consent Defense (i.e. Mutual Combat)

December 23, 2020

By McKinney Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Dallas Cowboys at “The Star” in Frisco put on their pads and helmets on a daily basis, go out onto a football field, and routinely intentionally, knowingly or recklessly cause bodily injury to one another.

We all know that’s not assault because when you put the pads on – you’re agreeing to allow another person to inflict pain.  The contact is welcomed.

This is the law school example of the consent defense to assault and it’s my topic today for my continuing series about defending domestic abuse cases.

Police refer to this as “mutual combat” but legally there is no real term for this in Texas.  The law in Texas calls it consent.

The Legal Definition of “Consent”

Use of force against another person isn’t criminal if the other person “effectively consented” or the person reasonably believed the other has “effectively consented.”  The conduct involved must be limited to bodily injury because a person cannot consent, as a matter of law, to aggravated assault (serious bodily injury).

“Effective consent” is defined in the negative.  We know what it’s not… Consent isn’t effective by reason of youth, mental disease or defect or intoxication.  Consent also isn’t effective if it was induced by force, threat or fraud.

So a person can be acquitted of assault — including domestic violence assault — if the jury is instructed on “consent” and the state fails to show beyond a reasonable doubt (1) the complaining witness did not ‘effectively consent’ to the assault and (2) the assault did not cause or threaten to cause serious bodily injury.

How Could this Possibly Apply in a Family Assault Situation?

An example I’ve given to clients countless times is this:  ever see two people stand toe to toe either in a bar or the high school gym?  What are they communicating to one another?  The answer is  BRING IT ON.  If I physically get in another person’s face, stare them down, and dare them to throw a punch at me — my view is I’ve invited physical contact.

And remember – what legally makes domestic assault is the affirmative finding of family violence done by a judge after either a person has plead guilty or a jury has convicted them of assault.  So all the legal defenses to assault are available to a person regardless of gender or family status.

Also many intimate relationships are reciprocally violent.  That is some couples fight one another on a regular basis and both partners are regularly the aggressor, the victim, or it’s indistinguishable.

Given this backdrop – the bar or schoolyard scenario can happen in a living room too.  It’s dysfunctional to be sure… but some couples engage in mutual combat.

Words enough cannot legally trigger self defense.  But words combined with physical manifestations of agreed contact are enough to trigger consent.

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

 

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Domestic Violence Charges – Blog 11:  Self-Defense

December 22, 2020

By DFW Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

Self-defense is the lynchpin of many, many domestic violence cases.

You have the right to defense yourself from an assault in Texas.  The law makes no distinction about gender, age or mental disability in the area of self defense.

Read here for an index of defending domestic violence cases topics.

Texas Law on Self-Defense

Here is Texas Penal Code 9.31(a) which I’ll dissect after you give it a read:

…a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force. The actor’s belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

“Immediately Necessary”

The law requires when someone defends themselves the impending attack on them must be imminent – not some time in the near or distant future.

“Use or Attempted Use of Unlawful Force”

The term unlawful force here is crucial.  Unlawful force can be defined as any unwanted, offensive or provocative contact.

Police, prosecutors and even defense lawyers make the common mistake in assault cases of assuming merely because someone inflicted more damage in an altercation – that person must not have been exercising self defense.

Also, this statute is mainly in the mind of the defendant.  Did the defendant “believe force” was “immediately necessary”?  Even if defendant misread the situation, they could still argue self-defense if in their mind they believed they were defending themselves.

Some common/ potential examples of self defense in domestic abuse cases:

  • Accuser shoves defendant and scratches defendant’s face – defendant pushes back knocking accuser onto the floor;
  • Accuser screaming and poking defendant in the chest (unwanted or provocative contact) – defendant grabs accusers arm causing pain;
  • Accuser is intoxicated and throws a weak punch at defendant – defendant braces the accuser from throwing any more punches and in doing so causes pain in forcing them to the ground;

Reciprocal Intimate Partner Violence

No discussion of self-defense is complete without the mention of a concept known as “reciprocal intimate partner violence” or “RIPV.”  It is a term used by Ph.D’s who have studied domestic violence and believe  much of the dysfunction is reciprocal – meaning both partners have been the aggressors at times and the victims at times.  It’s a concept I’ll discuss at length more during later blogs in this continuing series on domestic violence cases – but it is important to understand mutual combat situations are very common in domestic assault cases.

What Degree of Force is Appropriate?

Self-Defense allows defense within reason and the defense must be proportional.  Someone cannot kill another person for spitting on their face.

When someone is defending themselves from unlawful contact, they can cause bodily injury in response (infliction of pain or discomfort).

When someone is defending themselves from serious bodily injury or death (impairment of a life function or major organ), they can in turn use deadly force. Tex.Pen.C. 9.32.

When Self-Defense Isn’t Allowed

The law does not allow someone to provoke the accuser into committing an assault only to attack them in return.  The law also doesn’t allow someone to defend themselves because of words alone.  A person can also not lawfully make a self defense claim if they are in the commission of a crime greater than a traffic-level offense.

*Jeremy Rosenthal is board 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 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.

 

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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.

 

 

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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.

 

 

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