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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Sexual Abuse Charges – Blog 3: Sexual Assault of a Child

November 24, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Today I’m continuing my blog series on Sexual Abuse Charges.  Here is a guide to this series of blogs on sexual abuse charges where you can find more information on today’s blog and other related topics.

What is Sexual Assault of a Child in Texas?

Sexual assault of a child in Texas is committed when one of a number of sexual acts is committed between against a child who is younger than 17 but is 14 or older.  Another common term for this offense is “statutory rape” but this word doesn’t appear in the code.

For situations where an accuser is younger than 14, the applicable statute is typically aggravated sexual assault of a child.

I again apologize for the graphic nature of these descriptions, but Tex.Pen.C. 22.011(a)(2) defines the acts associated with sexual assault:

(2) regardless of whether the person knows the age of the child at the time of the offense, the person intentionally or knowingly:

(A) causes the penetration of the anus or sexual organ of a child by any means;

(B) causes the penetration of the mouth of a child by the sexual organ of the actor;

(C) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;

(D) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or

(E) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor.

Punishment for Sexual Assault of a Child

This is a 2nd degree felony in texas punishable between 2 and 20 years of prison and a fine not to exceed $10,000.  A person can be eligible for deferred adjudication or regular probation however it triggers lifetime sex offender registration.

Not Knowing the Age of the Child is Not a Defense

Statutory rape is what is known as a “strict liability offense.”  This means there is no necessary “mens rea” or culpable mental state needed to prosecute the offense.

Tex.Pen.C. 22.011(b) does require the crime be committed “intentionally or knowingly.”  This language refers to the physical acts themselves – not whether the actor knew the age of the complaining witness.

The legal reasoning which makes whether the actor knew the was under the age of consent irrelevant is because the state has such a heightened interest in protecting children – that courts believe it outweighs the defendant’s due process rights.

The “Romeo and Juliet” Defense

A more recent defense to sexual assault of a child is what is referred to as the “Romeo and Juliet” defense under Tex.Pen.C. 22.011(e)(2)(a).

This defense requires the following to be true:

  • The victim cannot younger than 14;
  • The defendant cannot be more than 3 years older than the victim;
  • The defendant cannot already be a sex offender;
  • the victim cannot be someone who legally could not marry the defendant.
  • The acts must be consensual

Other Defenses

The code provides other defenses to sexual assault of a child related to medical care and marriage.  Both are very specific as to what they require.

*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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Scientific Evidence of False Memories

July 26, 2013

By Collin County Criminal Defense Attorney Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

The New York Times published this article talking about how scientists have been able to create false memories in mice.

Eyewitness testimony has been extremely problematic in criminal cases.  Not only are human’s imperfect in their ability to recollect specific facts and incidents — the problem is compounded because people can convey their poor recollections in a persuasive manner.

*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 an attorney directly.

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Can I Recant a Police Statement?

June 20, 2012

By Collin County Criminal Defense Attorney Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Generally speaking a statement made to police in the course of an investigation can be considered by the police, a judge, or a jury for it’s full meaning.  Recanting the statement might call the original statement into question… then again it might not.

Who Made the Statement?

Statements of the Accused

Important in the analysis is who made the statement, what role that person plays in the proceedings, and the timing of the statement or statements.

A statement by an accused is referred to as an admission by a party opponent under Tex.R.Evid. 801(e)(2).  If the statement is relevant to a jury then it’s fully admissible.  The person or person(s) the statement was made to can testify to what was said by the accused or can have a written statement admitted.

Practically speaking, an accused and his or her lawyer would have to explain their reason for recanting such a statement although the burden of proof never shifts to the defendant under any circumstance.  Many judges and jurors would be naturally skeptical — and police tend to believe statements which fit their theory of the case.

Witness Statements

A statement by a witness or an alleged victim is a different and far more complicated matter.  The defendant in a case has the right to confront accusers in open court.  A witness who gives inconsistent statements to police — or attempts to recant a previous statement to police could be impeached or cross examined on the inconsistent statements before a judge or jury.

Suppressions of Statements

An accused’s remedy to have a prior statement nullified is usually a motion to suppress.  This would be in a situation where the original statement was taken illegally in violation of Miranda rights (or in Texas known as Tex.Code.Crim.P. Art. 38.22).  Those provisions do not apply to statements made prior to custodial interrogation (arrest).

Warnings about Inconsistent, Changed, or Recanted Statements to Law Enforcement

Depending on the situation — a person might not have a duty to cooperate with law enforcement.  An accused person, for example, always has the right to remain silent.  If you are cooperating with law enforcement, however, you have the legal duty to do so honestly.  Making inconsistent statements or admitting that previous statements were false could result in a person being prosecuted for criminal offenses of making false statements to law enforcement, obstruction of justice, or even perjury in some circumstances.

If you’re in the situation where you are considering in good faith recanting or amending a statement to law enforcement — you should have an attorney involved to counsel you.

*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 this or any circumstance you should contact an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship nor are communications or postings in this forum privileged.

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Official Oppression

June 9, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Texas Penal Code Chapter 39.03 governs official opression which occurs when a public servant acting under the color of office:

“(1)  intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;

(2)  intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or

(3)  intentionally subjects another to sexual harassment.

(b)  For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity.”

Official oppression is a Class A misdemeanor punishable up to a $4,000 fine and/or one year of county jail.

Generally speaking this statute keeps public officials accountable in the event they misuse their office.  The difficult part in proving this offense would be to show that the public official knew their conduct to be illegal.  Ignorance of the law is no excuse but having a good faith belief that what you are doing is legal is a different matter.  Official acts of police, judges and prosecutors are given extremely broad leeway so they do carry out their public duties in constant fear of being prosecuted themselves.  The law is subjective and as long as an official has some sort of good-faith belief in the legality of their actions, it would be extremely difficult to prove official oppression.

*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 for any situation you should contact an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship and communications with regard to this blog are not confidential.

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