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How To Beat A Domestic Violence Case: A Former Prosecutor Explains! (2021)

 

Family Violence Attorneys Fighting For You

Have you been arrested and charged with family violence assault charges in Fort Worth or a surrounding city in Tarrant County, Texas? Know that you are not alone. It is important to remember that an allegation does not constitute a conviction.

According to the Texas Council on Family Violence, during 2014, there were more than 185,000 incidents of family violence and domestic violence reported to authorities. Family violence issues can happen in any family; stress at work or caused by losing a job, health problems, drug addiction or dependency, and divorce proceedings can cause people to act out in ways they would never do under normal circumstances. In some cases, however, people are wrongly accused of family violence.

There are many things that can motivate someone to falsely allege family violence or abuse, the most common being to gain a strategic advantage during a divorce trial or custody battle.

If you have been falsely accused of violence toward your partner, spouse, or other household member, call the Hampton Criminal Defense Attorneys, PLLC at 817-435-2909 to schedule a free consultation. Hampton is an aggressive family violence defense attorney with experience, with experience defending hundreds of clients in cases that he took to trial.

Texas Statutes on Assault Family Violence

Under Texas’s Penal Code, Chapter 22, 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.”

Generally, an arrest is made when a law enforcement officer is called to the home in response to a complaint from a household member or neighbor. In some cases, however, the accuser reports the alleged incident days later or claims that the incident happened in the past. There are many strategic reasons for someone to falsely allege family violence, the most common being to gain a strategic advantage during a divorce trial or custody battle.

Family Violence Arrest Scenario & Process

Most family violence charges are filed at private homes after the accuser, or a witness calls the police. Law enforcement officers will decide at the time of the visit to the home to determine if one person in the home is a victim of assault and if so, they are likely to make an immediate arrest or issue an arrest warrant if the accused is not present for arrest.

In these cases, the victim may also be granted a protective order preventing you from going back into your home until such time as a court hearing can be held. If you have children with the victim, you might also be forced to stay away from them until the court hearing.

Temporary Protective Orders Following Family Violence Charges

The alleged victim might pursue a temporary protective order restricting you from coming in contact with them or their residence. This includes physical contact, a defined perimeter distance, email, phone, text, and social media communication. If children are involved, you might also be restricted from visiting them and if visitation is granted, there is a high likelihood that it will be supervised. Texas Family Code § 71.004. Family Violence defines family violence as:

Sec. 71.004. Family Violence. “Family Violence” means:

  • 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;
  • Abuse, as that term is defined in Sections 261.001(1)(C), (E), (G), (H), (I), (J), and (K), by a member of a family or household toward a child of the family or household; or
  • Dating violence, as that term is defined by Section 71.0021.

What if the Victim Fails to Cooperate with Prosecutors?

In many cases, victims will attempt to stop any prosecution by filing an affidavit of non-prosecution indicating they have no desire to press charges.

Texas police departments and district attorney’s offices have a “no drop” policy, which has been in place for nearly 20 years. This means the prosecutor will almost always pursue charges, even if the victim does not wish to pursue them.

Family violence charges are pursued and have designated courts: Tarrant County Criminal Court No. 5, County Criminal Court 2, and County Criminal Court 1.

Are there ways to work around the Texas “no drop” policy? Yes! The best word around a policy is to fall back on the United States and Texas Constitutional requirement that the State of Texas prove every element of the crime of family violence assault beyond a reasonable doubt.

Regardless of the district attorney’s policies, the prosecution always has the burden to prove the crime beyond a reasonable doubt. As a result, if the alleged victim provides an affidavit that addresses the elements of the crime and creates exculpatory evidence showing that the accused may not be guilty of the crime as alleged by the police in the police reports and statements, your criminal defense attorney may be able to use this new evidence as leverage to negotiate a dismissal of the domestic violence charges or reduction of the charges to a resolution that will provide an opportunity to clear your criminal record.

Punishment for a Family Violence Conviction in Texas

Like all other areas of the Texas Penal Code, the defendant could be facing either misdemeanor or felony charges. Should a defendant be found guilty of family violence in criminal court, the penalties include:

  • Class A misdemeanor family violence– up to one year in jail or a fine of up to $4,000, or both. For example, the crimes of Assault Bodily Injury – Family Member and Violation of Protective Order are Class A Misdemeanors.
  • Third degree felony family violence– 2 to 10 years in prison and fines up to $10,000. For example, the crimes of Assault Bodily Injury Choking of a Family Member and Continuous Family Violence are third degree felonies.
  • Second degree felonyfamily violence– 2 to 20 years in prison and fines up to $10,000. Aggravated Assault – Deadly Weapon – Family Member is an example of a second-degree felony.
  • First degree felony family violence– 5 to 99 years in prison and fines up to $10,000. Burglary of a Habitation with intent to commit domestic violence assault is an example of a first-degree felony.

Losing the Right to Carry a Firearm

It is important to remember a few things that occur specifically as a result of a family violence conviction in Texas. First, any conviction for family violence, even a misdemeanor, will result in the loss of your rights to carry a firearm. This could affect your career and cause you to lose your job if you are in law enforcement, security, or the military.

Second, your criminal record cannot be sealed, even after you have served your time on probation, county jail or in prison. This means that a temporary lapse of judgment or failure to hire quality legal counsel could result in serious life-long consequences and an indelible mark on your permanent record.

Why Are Some Family Violence Charges Misdemeanors and Others Felony?

The severity of family violence charges filed is determined by several factors: the injury caused, the weapon used, prior convictions, and age of the victims.

You can be charged with a Class A misdemeanor simply for threatening violence against a family member or causing bodily injury or pain in the act of an assault. Felony charges can be lodged if there have been incidents of violence against a family member in the past, if a weapon of any type was involved or if the assault was committed against a child, senior or a disabled family member.

Possible Defense Strategies for Family Violence Charges

If you have been arrested for Domestic or Family Violence in Fort Worth, Texas, your number one priority should be to hire the best domestic violence attorney to protect your freedom and your good name. An experienced and aggressive criminal defense attorney will ask you numerous questions about the events leading up to your being charged with assault family violence. The primary reason is to establish a winning defense. Additionally, the best criminal defense lawyers in Fort Worth will also take the time to While prosecutors may think they have an easy case, there are possible defenses to these charges.

Self-defense

What if you did assault a family member or someone you are in a dating relationship with but did so only because you were defending yourself from their actions? Under Texas criminal law, you are permitted to defend yourself under the laws of self-defense. In these cases, you must have felt threatened with harm and did not do anything to provoke the victim.

The defense of self-defense is an affirmative defense. Under Texas criminal law, this means you are required to admit to the assaultive behavior and then the burden of proof shifts back to the prosecutor to prove that your behavior was NOT self-defense, and this must be proven beyond a reasonable doubt. Failure to prove that your actions were NOT self-defense beyond a reasonable doubt will result in a not guilty verdict at trial or a dismissal of charges prior to trial.

Lack of Criminal Intent

The State of Texas must prove beyond a reasonable doubt that you intentionally or knowingly contacted the alleged victim, caused them bodily injury (pain). What if the injury was caused unintentionally or by accident?

For example: what if you slammed your front door to your home shut and, in the process, bloodied the nose of your girlfriend or wife? If you did not realize your wife was walking behind you when you slammed the door, this would be classified as an accident, not a family violence crime. However, if you knew your wife or girlfriend was walking behind you and you timed the slamming of the door to hit her, you clearly acted with criminal intent under the law.

If the alleged victim is willing to provide evidence through an affidavit establishing you had no criminal intent at the time of the injury, this may assist your criminal attorney in getting your family violence charge dismissed.

Lack of Evidence at Trial

It is almost impossible for a prosecutor or judge to convict someone of a crime without any evidence. If there is no evidence to prove that you are guilty, then the prosecutor would have a challenging task to convince a jury that you are guilty beyond a reasonable doubt.

Third Party Witness Testimony

What if other witnesses were present at the scene willing to provide statements establishing the truth of what happened? If a witness testifies that they were present at the time of the alleged violence and that the accuser is lying, it could help strengthen your case.

There may be other defenses that apply to specific cases, so it is important to discuss everything with your family violence defense lawyer.

Diversion Programs Options in Tarrant County

Some defendants in an assault family violence case may be eligible for the diversion program. Tarrant County has a diversion program which is an option for some if a number of conditions are met. First, the alleged must have no previous charges or family violence convictions.

Second, the victim must approve the alleged aggressor’s participation in this program. Typically, these programs require the defendant to plead guilty and are not the best option for you. In some cases, the charges could be dropped but will remain on the defendant’s record.

Usually, the diversion program is not an ideal alternative, but in rare cases it can be a good option to explore. Discuss your eligibility for the diversion program and weigh the pros and cons with your attorney before talking to prosecutors or investigators.

Contact a Family Violence Lawyer in Fort Worth TX

If you have been charged with misdemeanor or felony family violence charges in Tarrant County, we strongly urge you to hire a defense attorney immediately. You need to contact a family violence lawyer immediately upon your arrest so that they can protect your rights and start building a strong defense. Remember, charges of family violence can stay on your record for your entire life, can impact your ability to own a firearm and could impact your ability to secure employment or have custody of your children. You cannot fight these charges alone.

The Hampton Criminal Defense Attorneys, PLLC is a team of former prosecutors with over 85 years of criminal law experience and over 550 criminal jury trials. We stand ready to defend your freedom and your future. Call 817-435-2909 today to speak with Jeff Hampton, an aggressive family violence attorney