Five Keys to Defending Assault/ Family Violence Cases

May 1, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(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.



Texas Assault/ Family Violence Common Legal Issues

June 23, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Assault is governed by Texas Penal Code Section 22.01(a)(1).  That section provides that someone has committed the offense of assault if the person “intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse.”  At first blush, this statute looks scarily broad but in Dallas and Collin Counties in Texas, these cases are among the hardest to successfully prosecute.

What is the Definition of “Bodily Injury?”

Texas Penal Code 1.07(a)(8) defines “bodily injury” as physical pain, illness, or any impairment of physical condition.”  Again, scarily broad.  But not to worry.  There are plenty of strong defenses and other mountains the prosecution has to climb if they want to convict someone.

Self Defense

Self defense can absolutely be an affirmative defense in assault cases alleging “bodily injury.”  Section 9.31(a) defines self defense as stating in part, “a person is justified in using force against another when an to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful forces…”  While words enough are never alone to provoke a self-defense claim, it may be established liberally as well with the conduct of the victim.


A less prominent affirmative defense is consent.  A consent defense is just like it sounds — that the person assaulted agreed on being assaulted to the extent of causing bodily injury.  A person can never legally consent to aggravated assault or worse (causing serious bodily injury or the use of a weapon).  The classic law-school example of consent is where athletes (such as football players) routinely hit one another in the course of an event.  Another example could potentially be where the “victim” provokes an assault by inviting someone to hit them (perhaps by physically “bowing-up” to the accused).

Confrontation Clause Issues — Testimony of “Victim” is Usually Necessary

Though every case and factual circumstance is unique, the victim generally has to testify against the accused in an assault case to satisfy all the legal elements of the prosecution’s case.  The confrontation clause in the U.S. Constitution mandates that we get to face our accusers in open court.  Prior to 2004, the prosecution could successfully prosecute assault cases by calling police officers as witnesses to testify as to what the “victim” said at the scene even though the witness wasn’t in court.  Although that is technically known as “hearsay,” the court’s held that the statements usually fall within the “excited utterance” exception to the hearsay rule.

In 2004, a U.S. Supreme Court case called Crawford v. Washington, 541 U.S. 36 (2004) held (and I’m overly-generalizing) that a person’s right to confront accusers can over-ride some of the less established hearsay exceptions — such as an excited utterance.

In English, this means that unless the State can otherwise prove all the elements of their case through other witnesses (perhaps other people that witnessed the alleged assault), then if the victim does not testify, the prosecution’s case is probably going to be legally insufficient and will result in an acquittal.  As a note of caution, though, this rule of evidence can be un-intentionally waived by people that represent themselves or even by lawyers that don’t know what they’re doing.  You should also know that it is illegal to tamper with or otherwise intimidate a witness… and is frankly it’s a worse offense than the underlying assault charge itself.

Juror Attitudes

Prosecutors also have a hard time with assault cases for the reason that many jurors are hesitant to have the government get involved in the personal lives of others.  When they see a reluctant “victim” being forced to testify by the state or when they simply can’t tell who was really at fault in the altercation then they generally render the right verdict — which is NOT GUILTY.

Affirmative Finding of Family Violence

Perhaps an over-riding concern in a family assault case (whether it be a class c misdemeanor assault or a class a as discussed above) is the State’s attempt to hang on your record what is called an “affirmative finding of family violence.”  That finding is bad news.

Texas Family Code Sections 71.0021, 71.003, and 71.004 in conjunction with Penal Code 22.01(b)(2)(A) can cause an affirmative finding of family violence to enhance a second offense from a misdemeanor to a third-degree felony.  Simply because you get deferred adjudication does not mean this affirmative finding goes away.

In summary

People often make the mistake of under-estimating the degree of difficulty and the level of consequences of a family violence/ assault allegation.  Having a lawyer that knows what they’re doing is invaluable and can potentially save you mountains of headaches down the road.

*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 regarding any specific case, you should consult with an attorney directly.

Self Defense in Family Assault Cases

May 27, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Self defense is a common affirmative defense in family violence/ domestic assault cases.

The defense is governed by Texas Penal Code Section 9.31.  That provision says (in relevant part), “a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force.”

Self defense is an affirmative defense which means it needs to be raised by the accused (and not merely dis-proven by the prosecution as part of their case-in-chief).

Once the defense is properly raised in trial by the defendant, then the judge can instruct the jury that unless the prosecution dis-proves defendant’s self-defense theory beyond all reasonable doubt — the defendant is entitled to acquittal.

Self defense is raised in many assault cases involving family members — usually spouses.  The law makes no distinction as between male and female and either party may be entitled to rely on the self-defense defense depending on the facts.

Though case law isn’t 100% — most criminal defendants take the witness stand and admit to the underlying assault in order to rely on the self-defense statute.  Courts generally feel it is inconsistent for an accused to claim (1) it never happened; and (2) if it did happen — It was self defense.

*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.