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The good caseworkers don't last long. They're driven out by the nature of the work. What's mostly left are those who were abused themselves as children, or those who enjoy the power. -- Corvallis, Oregon family attorney

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A Criminal Defense Attorney's View
of the Domestic Violence Industry - Page 7

by: Paul G. Stuckle, Esq.
Updated: March 12, 2006

VII. Family Violence Legal Facts: A Checklist

Table of Contents

1. Issues Upon Arrest

What Is Family Violence?

Family violence is defined as "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." Tex. Fam. Code § 71.004 (2004)

What Is An Assault Family Violence Offense?

There is not a Texas penal code statute entitled "Assault - Family Violence." Despite what offense may have been written on the magistrate's warning or bail bond, the actual offense is for "Assault". In Texas, an assault offense can range from a Class C misdemeanor (similar to traffic citation) to a felony. The charge is a Class C misdemeanor if the physical contact is merely regarded as " offensive " or "provocative". In those situations, the suspect usually receives a citation and promises to appear later in a Municipal Court where the maximum punishment is by fine up to $500.00.

The vast majority of family violence cases are charged as Class A misdemeanors in which it is alleged the defendant caused "bodily injury" to the victim. In cases in which "serious bodily injury " is alleged, the offense is characterized as a felony. It also will be a felony if "the defendant has been previously convicted of an offense against a member of the defendant's family or household".

What Evidence Do The Police Need To Make An Arrest?

An officer must arrest if probable cause exists to believe that bodily injury has occurred.

Do the Police Need A Warrant To Arrest Me?

Texas state law authorizes the police to make an arrest without a warrant of: "persons who the peace officer has probable cause to believe have committed an assault resulting in bodily injury to a member of the person's family or household." Tex. Code. Crim. Proc. Art. 14.03 (a) (4).

This legal authorization leads to an automatic arrest or "zero tolerance" policy by many police departments. Once a call for assistance was made to a "911" operator regarding a domestic disturbance, someone is going to jail if there is any evidence, credible or not, of bodily injury.

What is Bodily Injury?

"Bodily Injury means physical pain, illness, or any impairment of physical condition". Tex. Pen. Code § 1.07 (8)

It does not take much to make an allegation of "bodily injury". Bodily injury does not require a trip to the doctor, any medication, or even any sign of injury such as a bruise or red mark. The alleged victims' statement they felt pain is sufficient for an arrest to be made. This is why the police officer will ask the alleged victim if she was "hurt" or felt "pain". If the victim says yes, then the officer has been provided with probable cause the bodily injury provision has been met.

What Happens If the Alleged Victim Decides She Does Not Want to Prosecute?

The State will prosecute the case anyway.

What Is Zero Tolerance?

Zero Tolerance means the police will make an arrest without exception after a family argument if they have probable cause to believe any bodily injury has occurred.

What Is A No Drop Policy

A "No Drop Policy" means the State will prosecute all domestic violence cases without exception, even if the victim wants the case dismissed and has filed an affidavit of non-prosecution.

Can I Be Held in Jail Even after I Make Bail?

The magistrate (judge) can hold the arrested person in jail for four (4) hours after making bail, if there is probable cause to believe any violence would continue if the person were immediately released.

This period can be extended up to forty -eight hours if authorized in writing by a magistrate. If the extended time period exceeds twenty four (24) hours, the magistrate must make a finding the violence would be continued if the person were released and the person has previously been arrested within ten (10) years on more than one occasion for family violence or for any other offense involving the use or exhibition of a deadly weapon. Tex. Code Crim. Proc. art. 17.291 (2004)

What Is the Arraignment?

After an arrest the accused will be brought before the magistrate for the arraignment. At this hearing, the magistrate will read the accused their legal rights, set bail, and usually issue an emergency protective order. Tex. Code Crim. Proc. art. 15.17

What Is an Emergency Protective Order?

An emergency protective order is issued against the accused by the magistrate at the arraignment hearing. The protective order may:

  • evict the accused from their residence for sixty (60) days;
  • prohibit the accused from possessing a firearm;
  • prohibit the accused from communicating directly with a person protected by the order or a member of the family or household in a threatening or harassing manner;
  • going to or near the residence, place of employment, or business of a member of the family or household or of the person protected under the order; or the residence, child care facility, or school where a child protected under the order resides or attends. Art. 17.292. Tex. Code Crim. Proc. Magistrate's Order for Emergency Protection
What Happens If I Violate The Emergency Protective Order?

Violation of the emergency protective order results in a separate criminal offense punishable by a fine of as much as $4,000 or by confinement in jail for as long as one year or by both. An act that results in family violence or a stalking offense may be prosecuted as a separate misdemeanor or felony offense. If the act is prosecuted as a separate felony offense, it is punishable by confinement in prison for at least two years. Art. 17.292. Tex. Code Crim. Proc. Magistrate's Order for Emergency Protection

Can the Judge Kick Me out of My Own House?

The protective order may evict the accused from their residence for sixty (60) days. Art. 17.292. Tex. Code Crim. Proc. Magistrate's Order for Emergency Protection

Can I Be Ordered Not to Have Any Contact with My Wife or Children?

An emergency protective order by itself cannot prohibit the arrested person from making non-threatening communication or contact with the protected person. However, nothing prohibits the magistrate from making an additional "no - contact" condition of bail. Art. 17.40. Tex. Code Crim. Proc. Conditions Related to Victim or Community Safety

Can I Get the Protective Order Modified, Changed or Dismissed?

The court, which issued the emergency protective order, can modify all or part of the order after each party has received notice and a hearing has been held. In order to change or modify the order, the court must find:

  1. the order as originally issued is unworkable;
  2. the modification will not place the victim of the offense at greater risk than did the original order; and
  3. the modification will not in any way endanger a person protected under the order. Art. 17.292. Tex. Code Crim. Proc. Magistrate's Order for Emergency Protection
What If My Spouse Says She Will Not Enforce The Protective Order?

Only the Judge who issued the emergency order can change it or set it aside. No other person can give permission to anyone to ignore or violate the order. Art. 17.292. Tex. Code Crim. Proc. Magistrate's Order for Emergency Protection

How Long Is The Protective Order In Effect?

An emergency protective order is in effect for not less than thirty-one (31) days and not more than sixty-one (61) days. Art. 17.292. Magistrate's Order for Emergency Protection.

A final protective order issued by a District Court may be in effect for up to two (2) years. Tex. Fam. Code § 85.025 (2004)

Can I Own or Possess a Firearm While out on Bail?

After arrest a magistrate will usually issue an emergency protective order, which can prohibit the arrested person from possessing a firearm, unless the person is a peace officer. Art. 17.292. Magistrate's Order for Emergency Protection.

The magistrate or judge assigned the case can make additional bond conditions, which prohibit the accused from possessing a firearm while the case is pending.

What Happens If I Have Right To Carry Handgun License?

The magistrate can suspend a license to carry a concealed handgun. Art. 17.292. Tex. Code Crim. Proc. Magistrate's Order for Emergency Protection.

What Kind of Conditions Will I Be under While out on Bail?

A magistrate can require any condition to bail that he / she finds to be reasonable as long as it is related to the safety of the victim or the community. Art. 17.40. Tex. Code Crim. Proc. Conditions Related to Victim or Community Safety In some cases this may mean there is to be no contact between the alleged victim and the defendant. Once the case has been assigned to a court, that judge may order additional conditions of bond. A judge in Collin County, Texas, has made it a practice to require the accused to attend a weekly batterer intervention counseling program for eighteen (18) weeks even though there has been no conviction.

The Prosecutor Must Notify Family Law Court Of An Arrest For Domestic Violence If Temporary Orders Regarding Custody or Possession of a Child Are In Effect.

The prosecutor must notify a family law court of an arrest for family violence if the family law court had previously entered temporary orders. Art. 42.23. Notification of Court of Family Violence Conviction.

What Is An Affidavit of Non-Prosecution?

This affidavit is a legal document from the victim informing the authorities prosecution is not desired and requesting the case to be dropped.

What Happens If My Spouse Executes an Affidavit of Non-prosecution?

The charging decision belongs to the government. In all likelihood, the State will prosecute the case anyway.

Should We Meet With The Prosecutor To Get The Case Dismissed?

Sometimes the alleged victim wants to meet with the prosecutor to change her story and get the charge dismissed.

This procedure needs to be skillfully handled by an attorney. If your spouse meets with either the prosecutor or police investigator alone, she will be threatened with arrest and prosecution if she wants to change the original story. The prosecutor will threaten to charge her with making a false statement to a police officer and / or perjury.

Can The Case Ever Be Dismissed?

Yes, even with a "no-drop" or "zero tolerance" policy, a good attorney can eventually influence the prosecutor to drop the case. Prosecutors, despite great overtures about caring for the victim and similar altruistic posturing, care very much about winning. The only thing that matters to a prosecutor is winning the case and advancing their career. The alleged victims are just numbers whose faces and situations will be forgotten by the prosecutor with the start of the next case.

The defense motivates the prosecutor to dismiss. Prosecutors hate to lose cases. If confronted with a case that cannot be won they will try to deviate from office policy to dismiss, "just this one time".

What If There Is No Physical Evidence of Bodily Injury ?

In many cases evidence of injury is slight, or no physical evidence of injury may exist at all. The State will prosecute the case anyway.

How Could I Be Found Guilty If There Is No Physical Evidence?

The State can get a conviction solely on the testimony of the alleged victim without any physical evidence of bodily injury.

What If The Victim Does Not Show Up For Trial?

The State will subpoena her for trial. If she does not appear the judge will issue a writ of attachment (arrest warrant). The Sheriff will arrest your spouse and bring her to the courthouse. If she cannot be located, the judge will grant the State's motion for a continuance. If she cannot be found, even after a continuance, the State will prosecute the case and present hearsay evidence of what your spouse said:

  1. On the 911 dispatch tape;
  2. To the investigating police officers;
  3. By introducing any written or recorded statements of your spouse. (Written or recorded statements may now be inadmissible after the United States Supreme Court decision in Crawford v. Washington, 2004 U.S. Lexis 1838, 72 U.S.L.W. 4229.)
Can the Case Be Won At Trial?

These cases are frequently won at trial by skilled criminal defense attorneys. In many situations, the argument involved both parties and any physical assault was actually mutual combat. Self-defense is a defense to prosecution under Texas and all states law.

2. Consequences Of A Conviction

Will An Arrest Or Conviction Be on My Record?

A conviction, probated sentence, or deferred adjudication will result in a permanent criminal record. In Texas there are only two ways to remove a domestic violence arrest record. An attorney can have the records of arrest expunged (destroyed) if the state never files a case or if the case is won at trial.

A plea of guilty or no contest to the charge or a finding of guilt, will result in a criminal record even if the defendant is placed on probation or deferred adjudication and successfully completes the community supervision period. There is no method by law to expunge, destroy, or seal domestic violence convictions, probations, or deferred adjudications. Tex. Govt. Code § 411.081

What Happens If I Am Not a U.S. Citizen?

A person charged with domestic violence who is not a United States citizen can face serious penalties. Deportation is possible even if the case ends in probation or deferred adjudication. A re-entry into the United States may be denied after arrest, even if the case has not gone to trial.

Who Would Have Access to My Record?

The records will be available for anyone with access at the courthouse or over the internet. Even a deferred adjudication case will be discoverable to any person. Present or future employers will have access to domestic violence records.

If I Successfully Complete Deferred Adjudication, Can I Get the Records Sealed?

Deferred adjudication for family violence cannot be expunged or have the records sealed. It will be a permanent record, even though a formal conviction is not entered. Tex. Govt. Code § 411.081

Can I Own or Possess a Firearm?

If the person enters a plea of guilty or no contest or is found guilty at trial they will not be able to possess a firearm for (5) years under Texas law, and not possess a firearm or ammunition at all under federal law. The federal law has no time limitation to it. The loss of the right to possess a firearm applies whether the case ends in a conviction, probation, or deferred adjudication. Tex. Penal Code § 46.04 (2004); 18 U.S.C. § 922 (g) (9)

If Placed On Community Supervision, Will I Have to Attend Counseling?

A person on community supervision for domestic violence will be required to attend a year long Battering Intervention Prevention Program counseling course. The average defendant is required to attend once a week for a fifty - two (52) week period. Failure to attend, or missing too many meetings will result in revocation of the community supervision and placement in jail. Tex. Code Crim. Proc. art. 42.141 (2004)

Can I Attend Counseling of My Own Choosing?

The defendant does not get to select a counseling program. This program will be set up in advance and the defendant will be required to attend. Tex. Code Crim. Proc. art. 42.141 (2004)

What Are Typical Probation / Deferred Conditions for Domestic Violence Cases?

The defendant is responsible for all costs of counseling and probation. Typical conditions of Community Supervision include:

  • Fine;
  • Court Costs;
  • Victim Impact Panels;
  • Counseling for Victim;
  • Contributions to Women's Domestic Violence Shelters;
  • Weekly Batterers Intervention Prevention Program Counseling;
  • Anger Management Counseling;
  • Monthly Probation Fees of $50.00 per Month;
  • No Contact With Victim;
  • Random Urinalysis Testing;
  • Monthly Reporting To Probation Officer;
  • Community Service;
  • Other Conditions the Judge Finds to Be Reasonable.

Tex. Code Crim. Proc. art. 42.14

A Domestic Violence Conviction Will Result in a Finding of Family Violence.

If the defendant enters a plea or is found guilty, the trial court must make an affirmative finding of family violence and enter the affirmative finding in the judgment. Tex. Code Crim. Proc. art. 42.013 (2004)

What Does it Mean to Have a Family Violence Finding?

A plea of either guilty or no contest will result in a family violence finding even if the sentence is deferred.

A finding of family violence can have drastic consequences for a parent facing a child custody or modification case. There may be a presumption that the accused is not a fit parent.

The Trial Court Judge Must Notify Family Court Of A Family Violence Finding.

The trial court judge must notify the family court judge if the defendant was found guilty or pled guilty or no contest to a family violence offense. This must be done even if the defendant is placed on deferred adjudication. Art. 42.23. Tex. Code Crim. Proc. Notification of Court of Family Violence Conviction.

A Final Protective Order Can Be Entered Against a Person Found to Have Committed Family Violence.

A family court judge may enter a final protective order against a person found guilty or pled guilty or no contest to a family violence offense. This can be done even if the defendant is placed on deferred adjudication.

Tex. Fam. Code § 85.022 Requirements of Order Applying to Person Who Committed Family Violence

What Are the Possible Penalties for a Conviction?

In Texas, the accused faces up to a $4,000.00 fine for a conviction, whether by a plea or a finding of guilt at trial. The accused may be incarcerated for up to one year in the county jail upon conviction, whether by a plea or a finding of guilt at trial.

If the accused has a prior conviction for family violence, a second charge will be prosecuted as a third degree felony offense, carrying a range of punishment of not less than two (2) years or more than ten (10) years in the penitentiary and a fine up to $10,000.00. Tex. Pen. Code. § 12.21; § 12.34