Introduction
Family Violence offenses are among the most common charges we see as defense attorneys. Although a first offense is generally a Misdemeanor, it can significantly affect your life if not handled properly. The good news is that people are often arrested for family violence offenses based on insufficient evidence. Law Enforcement Agencies are quick to arrest when someone alleges family violence, and they do not always conduct a complete investigation. This allows defense attorneys the opportunity to get charges dismissed or secure a not-guilty verdict at trial.
Someone Will Usually Be Arrested
In cases of assault family violence in Texas, law enforcement officials often arrest at least one individual associated with the scene upon arrival. Officers often arrest at least one individual in these cases to protect the complaining witness's safety and prevent any further harm that may occur in the future. Furthermore, alcohol is often involved with these types of calls, and Law Enforcement Agencies believe that giving people time to sober up away from each other will help prevent further harm. This blanket policy that many Law Enforcement Agencies follow leads to frequent arrests where someone is innocent. An experienced defense attorney can take advantage of this because there will often not be evidence that an assault occurred, or the only evidence available will be testimony by an unreliable complaining witness.
Protective Orders
Within Texas, Protective Orders (also called Restraining Orders) are a legal tool to protect victims of assault family violence. These orders are designed to protect the complaining witness from further harm and any other individual listed in the order. To be eligible for a protective order, the complaining witness must show that there is a clear and present danger of family violence, sexual assault, or other harm. The nature of the relationship between the victim and the alleged perpetrator is a factor in this determination. The purpose of Protective Orders are to keep people away from each other. Some common conditions of Protective Orders include prohibiting the alleged offender from contacting or approaching the complaining witness, staying away from their residence and workplace, and preventing them from possessing a firearm. Protective Orders can have varying durations. They may be temporary and granted without the offender's presence, or in some cases they can extend up to two years or longer and require the presence of the Defendant depending on the case's unique circumstances. To obtain a protective order, complaining witnesses can file a petition to the appropriate court which will review any relevant evidence and may file a temporary order with immediate effect. Contested hearings require that both sides are present and are often necessary to determine whether a final protective order is appropriate. Violating a protective order is a serious offense in Texas that can result in criminal charges.
Bond Conditions
When people are arrested for assault family violence within Texas, courts generally impose bond conditions as an agreement for release from custdy. The purpose of these conditions are to prevent any future violent interactions between the Defendant and the Complaining Witness. Some common bond conditions associated with an Assault Family Violence offense include:
1) No Contact Order- There may be a condition of the order in which the Defendant cannot have direct or indirect contact with the complaining witness. This may include physical contact, calls, texts, emails, communication via social media platforms, and other third-party communication channels.
2) "Stay-Away" Order - Defendants may be required to remain a certain distance away from the victim's residence, workplace, or any location the individual often visits.
3) Surrender of Registered Firearms - If the Defendant possesses any firearms, the court may order their immediate surrender to authorities while the case is pending.
4) Protective Order - As previously discussed, courts may issue a Protective Order to provide protection for the complaining witness.
One of the most helpful things a Defendant can do is follow bond conditions that a court orders. If they fail to do so, the Prosecutor will be less likely to offer a favorable plea deal, and failure to follow the conditions may be used during trial to paint the Defendant in a negative light.
Affidavit of Non-Prosecution
An affidavit of non-prosecution is a legal document filed by the complaining witness of assault family violence to express a desire not to proceed with prosecution. The affidavit is a formal statement given by the complaining witness requesting that charges against the Defendant be dismissed and expresses their desire not to be involved in the Defendant's prosecution in any capacity. While the affidavit given by the complaining witness is taken into consideration by the court and prosecutors, the document does not necessarily warrant the dismissal of the case. Prosecutors can still move forward with the case if they plan on subpoenaing the complaining witness to force them to testify or if they believe they have ample evidence and do not need the complaining witness's testimony.
Non-Cooperation of Complaining Witnesses
In Texas, the State may proceed with charges against the alleged offender even if the complaining witness is non-cooperative or files an affidavit of non-prosecution. While the victim's wishes are important to many types of cases, decisions relating to the continuation of prosecution ultimately lie with the Prosecutor. As previously mentioned, the Prosecutor may utilize other evidence, including reports from law enforcement officials, medical records, statements from witnesses, pictures and video taken at the scene, and 911 calls to attempt to prove that the Defendant is guilty. Although victim cooperation is important in these cases, the State has a duty to protect public safety, so do not be surprised if they continue with the case despite the complaining witness's wishes.
Affirmative Finding of Family Violence & Consequences
In Texas, an affirmative finding of family violence by the court entails significant legal implications. This finding applies in assault family violence cases but may also be applied to other offenses if a family member was involved. This serious finding can have a lasting effect on someone's life. Common consequences associated with an affirmative finding of family violence include:
1) Enhanced Penalties - When offenses are designated under the classification of family violence, it allows the State to enhance future charges involving family violence. A second arrest for assault family violence charges may be enhanced from a Class A Misdemeanor to a Third Degree Felony.
2) Non-Disclosure – If there is an affirmative finding of family violence, the charge cannot be non-disclosed once the case is over. Non-Disclosures allow people to clear their record of offenses once the case is completed. Since an affirmative finding of family violence prevents this, an offense can follow a Defendant around for the rest of their life, allowing employers and the general public to know about it.
3) Protective Orders - As previously mentioned, protective orders may be implicated by an affirmative finding of family violence.
4) Child Custody and Visitation Rights - Within the realm of family law, charges relating to family violence can greatly impact both child custody and visitation agreements. The court may consider this a significant factor in determining whether there should be restrictions on visitation or supervision of minor children.
5) Firearm Ownership – If a Defendant receives an affirmative finding of family violence after a conviction, they will be forbidden to possess a firearm for five years under Texas law. Also, there may be additional penalties under Federal law.
Family Violence charges are serious and can be complex. Therefore, meeting with an attorney experienced in handling these types of offenses is essential. McDaniel Law Group has extensive experience and expertise handling Family Violence cases and provides the support you need when dealing with criminal charges. Our commitment to excellence sets us apart and makes us the right choice for any of your legal needs. For more information, call (469)-960-4067 or fill out a contact form on our website to speak to our firm and schedule a free consultation today.