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What To Do If You Have Been Charged With a Domestic Violence Crime in Texas
Have you been accused or arrested for a Domestic Violence case in Texas? Regardless of whether your Domestic Violence case is a felony or a misdemeanor, it is important to know the rules of how to navigate the criminal justice system in order to ensure you are treated fairly. What you need is a guide. We hope you find this material we are providing you as a useful field guide in navigating this process so that you will have the best opportunity to put this family violence case behind you and clear your record.
Few types of criminal cases in Texas carry a more negative stigma than domestic violence cases. People automatically assume you must be a wife beater or a dangerous person if you have been charged domestic violence assault or violation of a protective order. First-offender domestic violence clients express to me how terrified they are of what happens next after they have been arrested and charged. They fear they will go back to jail. They stay up late at night afraid they will never be able to have the domestic violence arrest removed from their criminal record. Will they lose their job? Is their good reputation gone forever? It is natural to have these feelings and anxieties. However, the best way to manage these feelings is to learn how the process for defending a domestic violence case works and get proactive and start working on the things you can control to protect your future.
Before I share with you a true story of how The Hampton Law Firm successfully defended a very serious felony domestic violence, let us start with a basic understanding of the types of Domestic Violence cases that exist under Texas law:
- Assault Bodily Injury Family Member
- Assault Bodily Injury Family Member – with Prior
- Assault Impeding Breath of a Family Member
- Aggravated Assault of a Family Member
- Terroristic Threat of a Family Member
- Violation of a Protective Order
- Violation of a Bond/Protective order 2+ times within 12 months
- Continuous Violence Against the Family
- Assault by Contact – Family Member
Let us look at a true success story of how to defend a domestic violence charge in Texas:
About 6 months ago, we received a call from a young man who had been arrested for a felony family violence choking charge and had spent a few days in jail before being able to bond out of the Tarrant County Corrections Center. Brad, whose name has been changed for anonymity, felt like his world was crashing down around him. He was emotional on the phone and in panic about how all of this was going to affect his freedom, his clean criminal record and his career. Brad was a successful business leader with a local company, and he was terrified this charge would ruin everything for him. He loved his girlfriend and knew that the entire incident was a misunderstanding that the police blew out of proportion. His immediate hope was to be able to see and talk to his girlfriend. This brought out his first big question…
How Do I Remove An Emergency Protective Order? Is It Possible To Do Before the Case is Dismissed?
In this case, YES! Brad’s girlfriend had already called our office stating she did not want to prosecute the case and was willing to provide an Affidavit of Non-Prosecution. It was important for Brad to understand how the process worked to remove an Emergency Protective Order.
Emergency Protective Order’s happen automatically by operation of law if the domestic violence case being charged is a felony. Many times, clients are confused as to why an emergency protective order would be in effect if the alleged victim did not want to prosecute. Texas law requires it for all family violence felony cases. As a result, I explained to Brad that until we were able to modify the protective order, he was not permitted to have any contact with his girlfriend. If he decided to contact her, he could be charged with a new crime: Violation of a Protective Order, a Class A Misdemeanor.
In Brad’s case, his girlfriend called our office demanding to know what the police were claiming and wanted the opportunity to give an affidavit of non-prosecution and clear up the confusion about what really happened. After Brad’s girlfriend sent us an affidavit of non-prosecution, we were able to immediately file a motion to modify the protective order and bond conditions and get a hearing scheduled to remove the restrictions. Brad was relieved progress was being made but he had been reading the internet and was concerned about what he found. He asked…
How Does the Tarrant County District Attorney’s Office Handle Domestic Violence Cases?
I explained to Brad that the District Attorney’s Office in Tarrant County, Texas has a strict “No Drop” Policy on Family Violence cases. In other words, even if nothing took place resulting in a crime, the District Attorney’s Office will still pursue the case and prosecute to the fullest extent of the law. Brad was confused. He asked, “What if my girlfriend is crystal clear about what actually happened? What if she was not injured or hurt at all? Do they still pursue the charges?” Unfortunately, many times, yes.
It is unfortunate that so many police departments and District Attorney Offices take the position of a “No Drop” Policy because there are many instances when an argument may get out of hand and someone feels offended and decides to call the police. Despite the fact there may be no evidence of physical injury, many police officers are trained to separate the parties at the scene and the most effective way to do this is by arresting the person they believe is the offending party.
Brad was disturbed to hear that the prosecutors treated domestic violence cases in this manner, so he asked…
What Good Is An Affidavit of Non-Prosecution? How Does It Help My Case?
An Affidavit of Non-Prosecution is a piece of evidence as useful as the police report. I reminded Brad there can be many reasons why an alleged victim may feel it is necessary to give an affidavit of non-prosecution:
- The Alleged Victim Was Intoxicated – if the alleged victim was intoxicated at the time, the statements provided at the time the witness was intoxicated and emotional may be an unfair representation of what happened. As a result, it is important that the witness give an accurate statement explaining what they know to be the truth.
- The Alleged Victim was Emotional – it is human nature for an angry, frustrated or hyper-emotional person to perceive events in a manner that does not accurately reflect what took place. For example, how many people have regretted saying something when they were angry and later realized they did not mean what they said and needed to clarify what they meant?
- The Police Influenced the Alleged Victim’s Written or Oral Statement – many times, police are trained to ask leading questions to alleged victims to guide them to giving statements that provide probable cause for an arrest. An alleged victim may already be emotionally sensitive because of what has taken place and allows them to become an easy target for the police to manipulate them to provide information that may not accurately reflect what happened.
In Brad’s case, his girlfriend admitted she had been drinking and she was extremely angry because she thought he had been cheating on him and she overreacted to what happened. It was critical that this alleged victim provide a detailed statement through an affidavit of non-prosecution that not only established that she did not want to prosecute but outlined the facts establishing Brad’s innocence.
Brad became concerned that if the Affidavit of Non-Prosecution did not persuade the Grand Jury to dismiss the case, but instead kept the case as a misdemeanor family violence charge, would there be another option for him to get the case dismissed without having to take the risk of a jury trial? This led me to the next option available for us to consider.
The Domestic Violence Diversion Program – An Option For a Dismissal
I wanted Brad to understand that Tarrant County, Texas provides The Domestic Violence Diversion Program as a possible way to get his case dismissed and eligible for an expunction. In order to be eligible for the program, the following conditions must be met for admission:
- Partner-on-partner violence
- No current or prior violations of a protective order
- No stalking
- No open warrants for the current charge or any other charge
- No separate pending charges
- No prior history of being part of a diversion program
- Commitment to completing the program requirements
- Consent is required by the alleged victim for participation
Upon completion of the Domestic Violence Diversion Program, the criminal case is dismissed. Although there is a mandatory waiting period before eligibility, you will have the ability to have your arrest and charges expunged from your criminal record.
Brad was concerned about this program because of the unpredictability of the program and the fact his case was already so weak for the government after his girlfriend’s affidavit of non-prosecution. I reminded Brad that the Domestic Violence Diversion Program was a Plan B that would always be available to us in the future.
Finally, Brad asked, “If the case cannot be dismissed based upon all that you have mentioned, is there any other way I can prove that I am innocent?” YES!
You Have the Right to a Jury Trial to Be Exonerated
Every citizen in the United States of America has a Constitutional right to a trial by jury. Under the law, the Government must prove each element of the crime beyond a reasonable doubt. The jury must reach a unanimous verdict and if the State of Texas fails to prove the case beyond a reasonable doubt, the jury must render a verdict of NOT GUILTY!
I wanted Brad to understand that he can always choose to take his case to a jury trial if the case is not dismissed based upon our previous arguments. One reason why Domestic Violence cases go to trial more frequently is because you are not eligible to have your case expunged or non-disclosed if you take any type of probation, including deferred adjudication. As a result, if all other options have been exhausted in negotiations, a jury trial may be necessary. In his case, the evidence pointed favorably toward a not guilty verdict at trial. Ultimately, Brad’s case never made it to a jury trial. He was extremely pleased when we informed him that his case had been no billed by a grand jury. He had been fully exonerated without the risk of a jury trial.
Brad was relieved to know that he was free and clear of the criminal justice system! However, he began to realize that his arrest was on his criminal record and he wanted clarification about what could be done to clear his criminal record, so he asked…
What Can I Do To Clear My Domestic Violence Arrest From My Criminal Record?
In Brad’s case, his case had been no billed by a Tarrant County Grand Jury. Under Texas law, he must wait 3 years from the date of the no bill before he is eligible to file a petition for expunction. Brad was terribly disappointed by this news. He felt it was unfair for the law to force him to have this arrest on his record after he had been exonerated. The good news is Brad had a document of the Grand Jury No Bill to provide to any employer or any other party that wants proof that Brad had been exonerated from this charge.
What if Brad’s case had been a misdemeanor family violence case? Under a misdemeanor, there is a 2-year waiting period from the date of the dismissal before you can file for an expunction to have the case removed from your criminal record. Under a Class C citation of Assault by Contact, you may be eligible immediately upon dismissal of the charge.
Ultimately, Brad was appreciative that we were able to get his case thrown out by the grand jury. However, this true story illustrates that without taking the appropriate steps to protect himself, Brad’s true story could have turned out very differently.
If any of this true story sounds similar to what you or a loved one is going through, don’t hesitate to call our office now for a Free Case Analysis and we will be happy to answer all of your questions and guide you to your next steps.
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