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.

 


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.

 

 


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.

 


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.

 


When Does a Family Assault Become Aggravated Assault with a Deadly Weapon?

April 28, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Most family assault cases come to us with similar facts.  A heated family argument happens, someone calls 911, and the police come out.  After interviewing the often angry, emotional, and sometimes intoxicated people – the police make their best guess as to who is at fault and charges are brought.

Many are shocked to see the charges or the arrest may be for “aggravated assault with a deadly weapon.”

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So what makes it aggravated assault with a deadly weapon?  Usually there is an accusation someone “used or exhibited” a “deadly weapon” in domestic or family assaults which takes them from being misdemeanor assaults to 2nd degree felony charges (Carrying 2 to 20 years in prison and/or a fine not to exceed $10,000).

Using or exhibiting has a broad definition legally as does deadly weapon.  A deadly weapon is defined as:

  1. a firearm; or
  2. anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
  3. anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Even if there was no contact between spouses, if one spouse accuses another of brandishing an object which could cause serious bodily injury or death – then a person can ultimately be charged with aggravated assault with a deadly weapon.

I’ve seen all types of objects alleged to be deadly weapons.  Some are obvious and some leave you scratching your head.  Ash trays, candles, and even hands can be alleged to be deadly weapons.

The allegation can be heart-stopping – but here’s some good news:  The prosecution often sets themselves up for failure by over-charging these cases.  Imagine having jury duty, seeing someone charged with something as heinous sounding as “aggravated assault with a deadly weapon.”  Then you hear they got into an argument with their spouse and the show-stopping accusation is the accused picked up some object while arguing with their spouse and perhaps made some furtive motion which could be interpreted as a threat.  You’d think the accusation is ridiculous too.

There are variations on these facts we see — but there is almost never a good reason to capitulate to charges like these.  The charges can be attacked at the grand jury phase of the case, when it gets to the initial prosecution team — and if necessary at trial.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He was recognized as a Super Lawyer in 2019 by Thomson Reuters.