FAMILY VIOLENCE AND ASSAULT OFFENSES: LEGAL

PROCEDURE GUIDE
Answers to Frequently Asked Questions of a Texas Criminal Defense Lawyer on Domestic
Violence
Written by: Michael Lowe, Esq. on February 7, 2014
I am routinely asked to provide answers to questions on so called Family Violence cases.
Somebody called the police and you got arrested. You may or may not have given a statement
to police officer. You may or may not have even been at the residence when the officer arrived
at the scene to take the complainants statement.
What do you do now?
In this paper I am going to discuss some legal strategies I frequently employ to help my clients.
This paper isnt meant to be a comprehensive criminal defense lawyers guide to Assault,
Impeding Airway or Aggravated Assault cases in Texas. The following are issues that frequently
arise in these cases.
WHAT ARE THE TEXAS FAMILY VIOLENCE LAWS?
The most common family violence cases are based upon violations of the following Texas
statutes:
Assault Texas Penal Code 22.01
Aggravated Assault Texas Penal Code 22.02
Sexual Assault Texas Penal Code 22.011
Aggravated Sexual Assault Texas Penal Code 22.021
Terroristic Threat Texas Penal Code 22.07
Harassment Texas Penal Code 42.07
Stalking Texas Penal Code 42.072
Continuous Violence Against the Family Texas Penal Code 25.11
Violation of a Protective Order Texas Penal Code 25.07
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AFTER YOU ARE ARRESTED, YOULL NOTICE THAT YOU MAY NOT BE ABLE TO BOND OUT OF JAIL.
WHATS GOING ON HERE?
Normally, once you get arraigned and the bond is set, you can just post a bond and get out. This
is family violence, so theres probably a special law that creates an exception to the normal
rule, right?
Yes, further detention is authorized by Texas Code of Criminal Procedure article 17.291.
Under certain circumstances the detention can be extended up to 48 after the bond has been
posted if:
(1) the violence would continue if the person is released; and
(2) if the additional period exceeds 24 hours, probable cause exists to believe that the person
committed the instant offense and that, during the 10-year period preceding the date of the
instant offense, the person has been arrested:
(A) on more than one occasion for an offense involving family violence; or
(B) for any other offense, if a deadly weapon, as defined by Section 1.07, Penal Code, was used
or exhibited during commission of the offense or during immediate flight after commission of
the offense.
YOU MAY HAVE BEEN HANDED A DOCUMENT CALLED AN EMERGENCY PROTECTIVE ORDER OR EX PARTE
PROTECTIVE ORDER. ONCE YOU BOND OUT, AND YOUVE BEEN GIVEN YOUR COPY OF THE EMERGENCY
PROTECTIVE ORDER CAN YOU DO ANYTHING TO MODIFY IT? SHOULD YOU DO ANYTHING TO MODIFY IT?
These are separate questions that need to be asked and answered in consultation with a smart
and experienced criminal defense lawyer. I also need to mention that as of 2011, certain Sexual
Offenses could be subject to an EPO as well. For example, if youve been arrested for a violation
of Texas Penal Code section 22.011, 22.021 or 42.072, you may be subject to a protective. The
following comments are applicable to family violence AND the above Sexual Assault offenses in
Texas.
WHAT IS AN EPO?
What is an EPO? The EPO is an order that is authorized by Texas Code of Criminal Procedure
article 17.292. The order can prohibit the criminal defendant from doing the following:
1. Committing family violence or an assault on the person protected under the order; or
2. communicating:
(A) directly with a member of the family or household or with the person protected under the
order in a threatening or harassing manner; or
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(B) a threat through any person to a member of the family or household or to the person
protected under the order;
(3) going to or near:
(A) the residence, place of employment, or business of a member of the family or household or
of the person protected under the order; or
(B) the residence, child care facility, or school where a child protected under the order resides
or attends; or
(4) possessing a firearm, unless the person is a peace officer, as defined by Section 1.07, Penal
Code, actively engaged in employment as a sworn, full-time paid employee of a state agency or
political subdivision.
These orders will vary from 31 to 91 days, which is in the discretion of the Magistrate that
issued the order. What if the complainant/victim doesnt want the EPO? Who can apply for an
EPO? The judge can issue the EPO on their own. The police agency can make an application for
an EPO. Of course, the complainant can also apply for an EPO, as well.
Under certain circumstances the EPO is required by law and the judge has no discretion, but to
issue an EPO when he/she sets your bond amount in the jail. For example, if the case is defined
as family violence under articles 71.004 and 71.0021 of the Texas Family Code and the case
involves serious bodily injury or the use or exhibition of a deadly weapon, then the
Magistrate is required by law to issue at least a 31 day protective order on the complainants
behalf.
Now, maybe you dont mind not talking to your spouse or girlfriend after youve bonded out
but you need to go back to your home and this order is prohibiting you from going to within
1,000 feet of your own home! Can this be modified? Yes.
MOTION TO MODIFY THE EMERGENCY PROTECTIVE ORDER
Your lawyer can file a Motion to Modify the Emergency Protective Order. This Motion can be
filed in a couple of different venues. Once your lawyer files the Motion to Modify the EPO, the
judge is required to conduct a hearing under section Texas Code of Criminal Procedure article
17.292(j). Before the hearing starts all of the affected parties need to be notified. This would
include the arresting police agency, the complainant and the Defendant and his/her attorney.
The affected party should not include the prosecuting attorney on the case since the statute
does not explicitly include them in this definition. This hearing can either be a formal or
informal hearing. A court reporter can be present but it is not required.
Under article 17.292(n), the hearing to modify can be either in one of two different venues.
First, the original magistrates court can hear the modification motion. This type of hearing
would likely take place in a Municipal Courtroom or JP Courtroom. These hearings are generally
informal. More importantly, the only parties present will likely be the police agency, the
Magistrate, the complainant/victim and the Defendant with his/her attorney.
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Second, the Motion To Modify can be filed in the District or County Court that assumes
jurisdiction over the case. To accomplish this, the lawyer will need to file a Notice to Transfer
Jurisdiction to this court. The Notice will need to set out the reasons why jurisdiction is found in
the court and notice must be given to all affected parties.
I dont like to file Motions to Modify the EPO. The reasons for not filing the motion are basically
legal in nature and deal with the right to confront and cross-exam witnesses which is afforded
to each Defendant via the Bill of Rights including the 6th amendment. Later in this paper, I will
more fully explain why I dont typically file Motions to Modify the EPO.
CRAWFORD VS. WASHINGTON
Crawford vs. Washington is a United States Supreme Court decision that radically changed how
family violence and, to some extent, sexual assault cases are handled in the criminal courts
throughout the United States. Before the Crawford decision in 2003, Family Violence cases
were often times prosecuted without the complaining witness ever testifying.
For example, if the complaining witness was not going to testify favorably on behalf of the
District Attorneys Office, the Assistant District Attorney wouldnt seek to subpoena her and
would proceed to trial without her testimony altogether. Now, this may seems totally stupid
and pointless, but thats how things were done for many, many years.
But then how would the DAs office make the case against the accused? If the DA put the
Arresting Officer on the witness stand, surely he couldnt repeat the out of court statements
the complainant made to him at the time of the arrest, right? I mean, thats hearsay and thats
not gonna come into evidence, right?
Well, that was the job of the old Excited Utterance exception to the hearsay rule. Under
Texas Rule of Evidence 803(2), when a witness wasnt available to testify, the Police Officer
would be permitted to give her hearsay account of what the officer remembers she said while
she was under the stress or excitement of a startling event or condition, assuming that
statement related to the startling event or condition she about which she was excited. So, her
statement came into evidence for all purposes along with any photos and even a 911 tape.
The Crawford decision ruled that these types of statements made to law enforcement, if they
are considered testimonial in nature, cannot be used in court even though there may be an
applicable hearsay exception because it violates the accused Sixth Amendment rights to
confront and cross-exam their accuser.
You see, this is not a rule of evidence decision. The Crawford decision is a decision based on the
US Bill of Rights to the Constitution. Now, Texas Court interpreted this decision. The key issues
concerning Crawford are (1) whether the Defendant had a prior opportunity to cross-exam the
witness concerning the statements being offered in lieu of live testimony in the absence of the
witness and (2) whether the offered statement is testimonial in nature.
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So, the witness doesnt need to appear in court for the hearsay statement to come into
evidence as long as the Defendant previously had an opportunity to cross-examine the witness
concerning the same subject matter at hand in their trial. In Texas, most of the cases
interpreting the Crawford decision deal with what is the Courts consider testimonial
statements.
For example, in a case called Wall vs. State of Texas, 184 S.W.3d 730, 744 (Tex.Crim.App.
2006), the Court of Criminal Appeals looks to whether a reasonable person in the declarant
shoes would have appreciated the fact that the officer asking the questions of the complainant
would be doing so in prosecution of a criminal investigation or collecting evidence for a
prospective prosecution. In that case the complainant was the victim of an Aggravated
Assault. The complainant was badly injured and was in the hospital while being interviewed by
the Police.
The Texas Court of Criminal Appeals held his statements to the police at that time were
testimonial in nature. There are many, many more cases being decided all of the time in
Texas as to whether statements are testimonial.
One of the most important cases in this area is the Mason vs State of Texas, 225 S.W.3d 902,
908 (Tex.App.Dallas 2007), it is clear the standard the courts will apply will be:
Statements are non-testimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation is to enable
police assistance to meet an ongoing emergency. They are testimonial when the circumstances
objectively indicate that there is no such ongoing emergency, and that the primary purpose of
the interrogation is to establish or prove past events potentially relevant to later criminal
prosecution.
The Mason case examined whether the officers got the statement from the complainant after
the complainant and the accused were separated. Basically, the courts will look to whether the
officer is in investigation mode or in emergency mode when they get the statement they
want to use in court. Of course, this means that 911 tapes are admissible in most cases.
However, there may be some tricks your lawyer can use to keep them out anyway.
NOW YOU MAY BE WONDERING SOMETHING: LOWE, WHY DID YOU USE SO MUCH INK WRITING
ABOUT BOND CONDITIONS AND PROTECTIVE ORDER HEARINGSARENT YOU A CRIMINAL
DEFENSE LAWYER THAT TRIES CASES TO WIN?
Hell yes, I am. But you have to know how to win. Thats not taught in law school and can only
be learned through experience and savviness.
So why do all of these pre-trial things matter at the end of the day? How can a pre-trial hearing
hurt me in a family violence case?
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Remember, we are talking about Family Violence here. Complainants frequently dont show up
for trial. If that happens in your case, you can bet the DAs Office will try to find some way of
getting the complainants out of court hearsay statements into evidence whilst also denying
you the right to exercise your 6th amendment right to confront and cross-examine that witness.
This scenario can be very advantageous to the DAs office, in some cases.
HOW CAN THEY DENY YOU YOUR 6TH AMENDMENT RIGHTS WITHOUT
YOU KNOWING ABOUT IT?
Thats the part where your lawyer should know what they are doing and be able to advise you
appropriately at all stages in your case. For example, what if you were in jail and decided you
want your bond reduced. Well, you and your lawyer are going to file a motion for a bond
reduction and the judge is going to set that motion for a live hearing. The DAs office will, of
course, get the complaining witness to come to court to testify at your bond hearing in
opposition to any bond reduction.
If the complainant shows up for the hearing in front of the County Criminal Court or the District
Court and the DAs office puts the complainant on the witness stand, then youve just
exercised your right to confront and cross-examine the complaining witness in the case.
But you will say, Okay, but theres no jury, so how could have exercised my 6th amendment
right? The law is very clear. All it takes is a hearing with the opposing side present.
As long as you and your lawyer have the right to ask the complainant a question about the
offense, you will have exercised your right to confront and cross-examine for the remainder
of your case which includes any subsequent jury or non-jury trials. That is, if she doesnt show
up to court after that hearing, the DA will be able to use any of her statements as long as they
comply with the Rules of Evidence against you without you ever getting to cross-examine her
again.
HOW MIGHT THIS APPLY TO AN EPO OR PROTECTIVE ORDER HEARING?
It applies in exactly the same way. The mere opportunity to ask the complainant questions
while under oath the State of Texas there in the courtroom will be enough for you to give up
your right to confront the witness later on at trial. Now, that EPO Modification hearing may not
look like such a good idea anymore. This is especially true if you happen to know that the
complainant aint comin to court later on at your trial and the DAs office doesnt have any
other significant evidence to prove your guilt in front of a jury.
YOU MAY BE ASKING YOURSELF, IF THE DAS OFFICE CANT PROVE THEIR CASE WITHOUT THE
COMPLAINANT IN COURT, THEN WHY NOT JUST TELL HER NOT TO SHOW UP IF SHES SUBPOENAED
TO BE THERE.
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First of all, that would be a Felony Witness Tampering, so I would always caution my clients to
never go there with any witness. More importantly, the DAs office may get wind of your
admonitions to the complainant to not appear in court. If that happens, you can rest assured
that the DAs office will file a motion called a Forfeiture By Wrongdoing.
What does that mean? In Gonzalez vs. State of Texas, 195 S.W.3d 114 (Tex.Crim.App. 2006),
the highest court in Texas re-affirmed that common law rule called Forfeiture By Wrongdoing.
In Gonzalez, the Defendant claimed that the Robbery victim, Maria Herrera, who eventually
died later in the hospital, gave some important information to the responding police officer
that led to the Defendants capture and eventually indictment and conviction.
At trial, the Defendant objected to the dead victims statements claiming that he had a right to
confront and cross-examine the unavailable witness and therefore her Excited Utterances
violated his 6th Amendment rights. The Court of Criminal Appeals ruled that he forfeited his 6th
amendment rights due to his actions in shooting and killing the complaint in this case.
The same doctrine applies in Family Violence cases as well. For example, if the Defendant
bought a motel room for the subpoenaed complainant and asked her to stay there during the
trial in his case, the court would take that into consideration to determine whether his actions
to subvert the subpoena process constitute a forfeiture by wrongdoing. If the court rules in
favor of the DAs Office, in this way, then all of the statements that arent otherwise
objectionable are coming into evidence, with or without the witness to testify.
I ALSO FREQUENTLY GET CALLS ASKING QUESTIONS ABOUT THE
AFFIDAVIT OF NON-PROSECUTION.
I know what youve heard. You think if the complainant just fill out the Affidavit and begs for
the case to be dropped then the police will apologize for arresting their loved-one. Well,
thats just not how things work.
Unfortunately, theres no silver bullet, single strategy that will make a Family Violence case get
dismissed. Remember, its the DAs Office that decides to dismiss the case. No one can make
them dismiss their case. So, will filling out the Affidavit help the case? I dont think so.
But if you are convinced otherwise and dont care what I have to say then here you go. The
following is a sample ANP. You can use it if you think it will help. Fill it out take it to the DAs
Office, whatever you want to do with it. I dont care. Just remember where you got it from
when the case doesnt get dismissed.
____________________________________
About the Author: Michael Lowe is a Texas trial attorney practicing criminal defense law in the
Dallas area for many years after first serving as a felony prosecutor for the Office of the District
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Attorney for Dallas County. He is Board Certified by the State Bar of Texas in Criminal Law. Mr.
Lowe has tried to verdict over 150 criminal trials so far in the state and federal systems.
NON-PROSECUTION AFFIDAVIT
THE STATE OF TEXAS }
}
COUNTY OF _________ }
BEFORE ME, the undersigned authority, on this date personally appeared _______________,
who, after being duly sworn on her oath, stated the following:
On __________, I gave a written statement to the ________ Police Department in connection
with File Number ____________ and at the direction of the _______ Police Department. I have
reviewed that statement and I would like to make the following corrections to that statement.
Although there was a physical altercation between myself and my husband, _______________,
on _____________, I do not believe that he ever caused me any physical pain as a result of the
physical struggle that occurred on ________________ at _____________, _________,County,
Texas. Thereafter, I have felt no physical pain as a result of this altercation.
I do not believe that ______________ is a violent person. I have been informed by my divorce
attorney,_____________, that my husband is being prosecuted for a Class A Assault Family
Violence case. I do not wish for him to be prosecuted for what happened on
________________. Currently, my husband and I are going through a divorce. We are engaged
in a Collaborative Divorce and do not wish to litigate child custody or any other matters
concerning our divorce. However, I have been informed by my attorney that we cannot move
forward with our divorce unless and until the criminal matter against my husband is finally
resolved. It is my wish that the case against________________ be dismissed with prejudice.
Further affiant sayeth not.
________________________________
SUBSCRIBED AND SWORN TO before me the undersigned authority on this the _____
day of _____________, 20__.
______________________________________
Notary Public in and for the State of Texas
My Commission expires: _________________