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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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.

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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 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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