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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Posted by niftybrady

Five Keys to Defending Assault/ Family Violence Cases

May 1, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.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.

 

 

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Posted by niftybrady

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

April 28, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.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.”

Screen Shot 2020-05-26 at 8.40.22 AM

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.

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Posted by niftybrady

Domestic Violence – Reciprocal or Unilateral?

October 2, 2019

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

texasdomesticviolencearrest

The overwhelming mentality in family assault prosecution is the violence is always unilateral.  That is, one spouse and one spouse alone is perpetually controlling, manipulative and ultimately physically abusive.  This is the theory of “the cycle of violence.”

I’ve handled hundreds of domestic assault cases and this just isn’t my experience.  The “cycle” is true some times but not nearly as often as most prosecutors believe.  Most cases involve reciprocal violence.

My experience is there is dysfunction which manifests itself by the couple communicating through violence and assaultive actions.  She throws a phone at him one day — he pushes her into a wall the next day.  She gets drunk and hits him with a fist – he punches back.  The person prosecuted might have been the perpetrator that day — but it doesn’t mean the entirety of the relationship circulates around that one person controlling, manipulating and battering the other.  They continually do it to one another.

“The Cycle of Violence”

The theory essentially makes domestic violence unilateral.  One side, and one side alone, is always to blame the for each and every instance of domestic violence — typically the man in a heterosexual relationship.  The theory goes he is controlling, often degrading, manipulative and physically abusive.  This is followed by a honeymoon period of sorrow and remorse but builds back into the explosive rage and violence.

The “Cycle” though, has many blindspots.  For instance there is no consideration of mental health issues or even for basic self defense situations.

The “cycle of violence” does have some of merit.  The problem is the degree of belief and trust some prosecutors put in this theory.  What prosecutors don’t know about a couple — they might fill in with conjecture often related to their “cycle” theory.

Here’s an example:  In a assault/ family violence case the complaining witness does not return the prosecutor’s phone calls.  Plugging in the generic ‘cycle of violence,’ many prosecutors assume the reason is because the batterer is in control of ‘victim,’ or that the ‘victim’ wants to help the batterer because she can’t stand up for him/herself.

Reciprocal Domestic Violence

Academic studies support my observations in my practice.  In one study, it shows reciprocal violence is far more common than unilateral — and that it is most commonly the female that is the aggressor.  The idea the male is typically the aggressor has been shown to be stereotypical and false.

Whether you believe spouses beating up one another is reciprocal or not — the truth is we simply don’t know and that all couples develop their own unique mini-culture.

*Jeremy Rosenthal is Certified in Criminal Law by the Texas Board of Legal Specialization.

 

 

 

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Posted by niftybrady

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.

 

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Posted by Jeremy Rosenthal, Esq.

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