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 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.

 

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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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Texas DWI Punishment Gets Tougher for First Time Offenders. Again.

September 11, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 562-7549

A person with a blood alcohol concentration with a 0.15 or higher at the time the test is taken can now be charged with a Class A misdemeanor DWI instead of a Class B if it is their first offense.  This change took effect as of September 1, 2011.

First, let’s discuss the practical effects of the change.  A Class A misdemeanor on a DWI is punishable between 30 days and 1 year of county jail and a fine not to exceed $4,000.  A Class B DWI is punishable by between 72 hours jail and 180 days and a fine not to exceed $2,000.   Unlike a 2nd DWI, however, this law does not require the defendant serve 10 days as a term and condition of probation — meaning that a person doesn’t have to go to jail for 10 days just to be granted probation.

Second, you can see that I’ve italicized the words above “at the time the test is taken.”  This is a significant departure from normal drunk driving law which prohibits one’s blood/ alcohol concentration being above a 0.08 at the time of driving.  This is a “tie goes to the prosecutor” provision because it is very difficult for prosecutors to prove whether a person’s blood alcohol concentration was higher or lower at the time of driving due to a process known as retrograde extrapolation.  So this twist is really just punishing people who have blood alcohol concentrations that are on the rise when they are driving.

Texas’ prosecutorial mentality of “when you have a hammer, everything looks like a nail” with this new change gives a person even more incentive to refuse a breath test and to take a DWI to trial.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation, you should contact a lawyer directly.  Contacting the attorney through this blog does not create an attorney-client relationship and no communication is considered privileged.

 

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Posted by Jeremy Rosenthal, Esq.