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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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 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 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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