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 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 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 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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