Five Keys to Defending Assault/ Family Violence Cases

May 1, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Police and prosecutors have built a machine to combat domestic violence.  Their intentions are noble yet often misguided and built on false assumptions and one-size fits all narratives.

Family assault cases are one of the most common cases our office handles.  Every one of them is unique but the more and more we focus on them, the better able we are to know the focal points needed for success.

  1.  “No Compromise” attitude.

The fact is in domestic violence cases, the harder you work and the less willing you are to compromise — the luckier you’ll be.  In family assault cases the prosecution’s case tends to deteriorate when pressed.  This doesn’t mean I have to be a jerk to the prosecution — in fact, quite the opposite.  I want to be able to offer them a way out – but on my terms.  If they don’t want out, then we have to be ready to hammer them at trial.  A lawyer’s attitude in these cases is the single most important key to defending these cases.

2.  Legal (And not Emotional) Analysis of the State’s Case.

The law surrounding domestic violence and assault cases is complex and intricate.  There are enough cases analyzing the Sixth Amendment to the US Constitution’s confrontation clause to fill an entire law school course.  There are also multiple defenses to assault which might often apply in any given fact scenario – and your lawyer must also understand in what circumstances the Judge would legally be required to instruct a jury as to those defenses.

Legal analysis is critical because often we know well before the case goes to court the prosecution can’t or is unlikely to win.  This gives us the power and leverage to dictate our terms to the State.

One of the main reasons our system provides for lawyers is so we can effectively divorce our legal problems from our emotional ones.  By that, I mean these cases require a cold-dispassionate analysis.  Just because you might “feel” like you should be at fault doesn’t mean the law says this.

3.  Aggressive Factual Investigation

In spousal abuse allegations your lawyer can’t be afraid of the facts.  As discussed above, the harder we work, typically the luckier we get.  One distinct advantage a criminal defense lawyer has over the prosecution in the vast majority of cases is we typically have a better road map.  We know their side of the story in the police report and they either don’t have our side of the story (because of the 5th Amendment right to remain silent) or they know our story but tune it out because they never think they’re wrong.  In any event, I feel like we always have a more “powerful flashlight” to find the aspects of the case we know will help us win.

Also, it is key to be aggressive particularly from the outset of the case.  Perspectives and accounts tend to change in these cases.  By capturing witness’ recollections early, a lawyer can capitalize on changing stories instead of being victimized by them.

4.  Knowing the Collateral Consequences of a Domestic Violence Charge

One of the reasons I think it is important to have an attitude of “no compromise” is because family assault cases can be so damaging in ways which aren’t obvious.  We call these “collateral consequences.”  Direct consequences would be things such as possible jail sentences (up to a year in Class A Misdemeanor assault cases or up to 10 years prison for cases where impeding breath is alleged), fines, and court costs.  Collateral consequences are issues such as loss of 2nd Amendment rights to possess firearms, your ability to adopt a child in the future, inability to hide your criminal record from the public and on and on.  In truth, even misdemeanor family violence charges can act like “mini-felonies” and there are abundant tripwires.

5.  Persistence

Many of my client’s want me to waive a magic wand and have the problem go away with the snap of my fingers.  It might work like that from time to time but usually not.  One of the keys to a good outcome in a domestic violence charge is knowing we have to be prepared for a “marathon” as compared to a “sprint.”  If we get lucky sooner — so much the better.  But we have to understand the “luck” is normally a function of hard work.

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

 

 


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

April 28, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.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.


When a Texas Officer can Arrest for Assault

May 6, 2010

Generally speaking, an officer can make an arrest for offenses (against the peace) viewed in their presence or, of course, if they have an arrest warrant.  Assault cases, however, typically aren’t committed in an officer’s presence… but they are governed by their own statute instead — Texas Code of Criminal Procedure 14.03.

As an example, here is a recent article on a situation where two brothers at a Plano home apparently got into some sort of scuffle and where one went to jail after the police were called.

14.03 specifically allows officers to make an arrest where they have probable cause to believe someone has committed family violence, violated a protective order, have prevented someone from placing a 911 call, assaulted a non-family member and there remains a risk of further violence towards the alleged victim, alleged sexual assaults and various other circumstances.

Basically, if the situation involves violence, the legislature has broadened the officer’s ability to arrest.

It is possible some police agencies have actual policies about making arrests during these situations, but it is the rare exception that the law requires an arrest during an assaultive situation under 14.03. (The statute only uses the word “shall” in conjunction with an arrest for violations of protective orders — meaning that is the only time the officer is actually legally required to make an arrest.

In the situation with the Plano teenagers, it obviously appears the officers had at least the legal authority to make the arrest.  Whether the case is charged and prosecuted is another matter.

Jeremy F. Rosenthal, esq.

(972) 562-7549

*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 specific legal advice you should consult an attorney directly.

 


Can They Make Me Testify Against My Husband/ Wife?

May 2, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

In Texas the prosecution can and will force one spouse to testify against another — often against their will.  I am often asked in disbelief in assault cases “can they really do this?”  Unfortunately the answer is, “yes.”

Texas Rule of Evidence 504 governs the husband-wife privilege.  Generally speaking, any communication made to one’s spouse is privileged under that rule during and even after the marriage.  Either spouse may assert the privilege whether they are a party to a case or not.  Unfortunately, the husband-wife privilege is riddled with far more exceptions than other privileges (such as the attorney-client privilege).

Tex.R.Evid. 504(a)(4)(D) is just one of the specific exceptions to this rule of privilege.  That rule states a spouse can be compelled to testify against their other spouse if that spouse is considered the victim of the crime or if any other member of the household or any minor child.

Additionally, it is important to note that in some cases, the testimony attempted to be compelled out of the “victim” spouse is not regarding communication but regarding conduct.  Obviously the privilege in and of itself only applies to “communications” in the first place.  The privilege, therefore, cannot be used to prevent disclosure of facts surrounding an incident where family violence has been alleged.

The state in assault cases must still prove their case beyond all reasonable doubt.  Jurors are very sensitive to situations where it is clear one spouse does not want to testify against the other and don’t always appreciate the police and/or the state being overly-invasive of a family… so even where a spouse is compelled to testify against their will — the cases can and do frequently result in acquittals.

*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 should be considered legal advice.  For legal advice about any situation you should always directly consult an attorney.


Am I Guilty Just Because I was There?

March 1, 2010

By Collin County Criminal Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

In Texas, mere presence at a crime scene alone is insufficient to sustain a conviction.  The difference between just being at a crime scene and doing something which can be considered aiding or abetting is paper thin, however.  And if you’re complicit in an offense — you can be held equally responsible.

Texas has what is called the law of parties in criminal cases.  It is governed by Section 7.02 of the Texas Penal Code.

Tex.Pen.C. 7.02(2) says that if a person, “solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense…” then they are criminally liable as well.  I’ve italicized the words above to show just how liberal the application of that law can be.

Let me give you a hypothetical of how this rule applies.  Take two 18-year old boys at the mall.  One decides he’s going to shoplift and the other doesn’t know about it.  If the friend doesn’t see and doesn’t know that the other was trying to steal as they all walk out of the store — it would be very difficult to say the non-stealing friend is guilty under the law of parties.  Certainly the shop owner and police may think so; but they would have to prove that in court.

On the other hand, let’s say the one guy is trying to shoplift and friend sees it.  He doesn’t participate, but he gets nervous and when the shop owner looks over at him, he “acts natural.”  Are both guilty of theft?  It’s a tough question.  Some jurors may consider that aiding or attempting to aid in the furtherance of the offense.

Issues like these are why criminal defense lawyers experienced in trial are crucial.  A criminal defense lawyer can force the prosecution to prove the complicit beyond all reasonable doubt.  If the prosecution can’t, then there will be an acquittal.  The burden is on the state to prove your intent and your actions.  The burden isn’t on you to show you were innocent!

It should be noted that there are many offenses where people have an affirmative duty to report the crime that they’ve witnessed.  This generally includes felony offenses and other cases where the witness owes a special duty to the victim.  Also anytime a person suspects abuse or neglect of a child, they have a legal duty to report the same to Child Protective Services.

*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, please consult an attorney.