Experienced Domestic Violence Defense Attorneys With A Proven Track Record of Results
At the Law Office of J. Barrett Wilson, PLLC, we help Texas families reclaim their lives and stability after a domestic incident. We understand how traumatizing an arrest for assault family violence can be for your entire home. Often, good people in loving families have one bad moment. Someone calls 911, hoping police will arrive and bring calm to a tense situation. Instead, they place a member of your family under arrest. The arrest sometimes triggers an Emergency Order of Protection, which can limit your ability to communicate and bar the arrested person from the family home. We provide strength and clarity for those navigating the criminal justice system with a domestic violence charge.
Understanding The Assault And Domestic Violence Process
While the underlying facts of every assault are different, the process from investigation to arrest and all the way to resolution follows a similar path for most of cases. The major differences lie between misdemeanors and felonies because felony charges add grand jury deliberations to the process, and between cases resolved by an agreed plea versus those resolved through trial. If you or someone you love has been accused of assault or domestic violence, the following outline will give you an overview of what the whole process will be like. For more specific information check out our Justice In Sight resource center, or schedule your initial consultation with our criminal defense lawyers at the Law Office of J. Barrett Wilson, PLLC.
911 Call And Investigation
The vast majority of assault and domestic violence cases do not occur in view of police officers, so they almost always begin with a 911 call. The 911 call will become an important piece of evidence and is admissible in trial under certain circumstances. The content and timing of the 911 call will impact the value that piece of evidence has in trial. Keep in mind, interfering with the 911 caller’s ability to make their call for assistance may result in an additional Class A Misdemeanor charge.
Once police officers arrive, they should separate everyone who was involved in the alleged assault and begin their investigation. While officers should seek the truth in a neutral, objective manner, they often merely seek to determine an aggressor and listen for the magic words that the alleged conduct caused the complaining witness to feel pain. Officers will almost always arrest the person they deem to be the aggressor, regardless whether the complaining witness wants the person arrested or not. They seem to think that it’s always safer to arrest someone and let the lawyers figure it out. But they often fail to consider the impact an arrest for assault or domestic violence can have on the family and the arrested person’s ability to find a job or participate in school-related functions for their children.
Officers usually gather several pieces of evidence during their investigation, including photographs, audio/video recordings and written statements. Remember, regardless of your role in the alleged assault, you do not have to write a written statement. Prosecutors will hold you to your written statement as though it is the sacred truth of what happened. Complaining witnesses sometimes write inaccurate statements in the heat of the moment. And if you’re the person accused of the assault, be aware that, if you write a statement, it will be used against you in trial. If you’re the person under investigation, we recommend never writing anything down without consulting an attorney first.
Arrest And Release On Bond
Most law enforcement agencies believe that it is better to arrest someone accused of domestic violence so that the parties involved in the alleged assault can have a cooling off period, even if the complaining witness never wanted their loved one to be arrested. Upon arrest, officers will transport the accused to either the municipal or county jail. Anyone arrested for assault or domestic violence will not be eligible for a writ bond because a magistrate wants to review the case and determine if an emergency order of protection is needed. The magistrate will then set bail and may add conditions upon release. Once bail is set, you can either pay the full bail amount as a cash bond, or you can work with a bond company to post a surety bond.
Even though the arrested person will not be eligible for a writ bond, we still recommend calling a criminal defense attorney as soon as possible. You can call the Law Office of J. Barrett Wilson, PLLC, anytime at 469-565-1221, and we can guide you through the process of getting your loved one released and handling the steps that will follow. Once your loved one is released, we can schedule an initial consultation to discuss your situation in detail.
Modifying The Protective Order
The complaining witness, a police officer, or the magistrate setting bond may initiate an emergency order of protection. Emergency protective orders (EPOs) can last up to 61 days, and they put in place a number of conditions designed to keep victims safe. Those conditions include:
- Barring entrance to the family home
- Maintaining a certain distance from the protected person(s) at all times
- Having no contact with the protected person(s) except through a lawyer
- Alternatively, having no threatening or harmful contact with the protected person(s)
- And other conditions deemed appropriate by the magistrate
Sometimes, however, EPOs get filed even when there is no risk of further violence. And you can imagine how disruptive it can be when a family member cannot enter the home or have any contact with other family members for up to two months. Fortunately, we can file a motion to amend the protective order to have the conditions relaxed or removed altogether. But keep in mind, until the protective order has been modified by a judge, violating any of the conditions of the EPO can result in a new arrest for violating a protective order, a Class A Misdemeanor. A second violation becomes a felony. And just because the protected person invites you over or initiates contact with you, you can still be arrested for violation of a protective order.
Misdemeanor – Before The Court Date
For the most part, misdemeanor assault and domestic violence charges come in two basic varieties: 1) Class C Assault by Offensive Contact; and 2) Class A Assault Causing Bodily Injury. With Class C Assault, the citation will provide a date by which the cited person needs to appear at the municipal court. If you hire an attorney prior to that date, the cited person will not need to appear in court, and the attorney will appear instead. With Class A Misdemeanors, the police agency files the case with the District Attorney’s Office, and a prosecutor determines whether or not to accept the charge. If the charge is accepted, the case will be assigned to a county court, and the accused will have to appear on the first court date with their attorney.
While waiting for this first court date, our Texas domestic violence attorneys can help you secure an affidavit of non-prosecution if the complaining witness is cooperative and does not wish the accused to be prosecuted. An affidavit of non-prosecution is a sworn statement in which the complaining witness expresses why they do not wish to see the accused prosecuted, and while it does not automatically trigger a dismissal, it is a great tool for your attorney to use against the prosecution.
Felony – Grand Jury Deliberation
If you’ve been charged with felony assault or domestic violence, Texas law requires the prosecution to present your case to a grand jury. The grand jury hears evidence and determines whether probable cause truly exists to indict you for the felony for which you’ve been charged. Felony assault family violence charges often involve the allegation of impeding breath or blood flow.
Sometimes, we have evidence that contradicts the story law enforcement wants to tell, and under those circumstances, your attorney can create a grand jury defense packet. Since grand jury deliberations take place in secret, defense attorneys are not allowed to be present and cross examine witnesses. But we can submit a packet filled with affidavits, evidence and argument to convince the grand jury to issue what is known as a no-bill. A no-bill of indictment means the grand jury does not believe probable cause exists to charge you with the alleged offense, and your case is effectively dead. After a particular waiting period, you can have record of the arrest expunged. For some examples of how grand jury defense packets have helped past clients, click here.
First Appearance And Discovery Review
At the first appearance, all you have to do is be present and check in with the court bailiff. Your attorney will meet with prosecutors, receive discovery, and usually the prosecutors will make an initial plea offer. Your attorney will tell you when your next court date is and whether you will have to appear. Between the first and second court dates, your attorney will review discovery – offense report, written statements, photographs, videos, and 911 call – and discuss with you the strategy moving forward. Discovery laws prevent your attorney from giving you copies of the evidence, but you may review evidence with your attorney in his or her office.
Most courts allow two or three court settings in between the first appearance and the date we have to enter a guilty plea or set the case for trial. The majority of plea negotiations take place at those in-between court dates. Your attorney will meet with the prosecutor and negotiate a positive outcome for your case.
At the Law Office of J. Barrett Wilson, PLLC, we approach plea negotiations from the perspective of what would happen if we went to trial. Without playing our hand too much, we will inform the prosecutors about the weaknesses in their case and any issues they may have with their complaining witness. Our goal is to negotiate an outcome that leaves my client eligible to have their arrest expunged.
Before we have to make a final decision about a plea or trial, we discuss the advantages and disadvantages of agreeing to the best plea deal we’ve been able to negotiate. We’ll help you weigh those advantages and disadvantages with the risks and rewards of going to trial.
Plea Agreement Or Trial
At some point, the Court will force us to enter a plea of guilty or set the case for trial. By entering a plea of guilty, you are accepting an agreed punishment of jail time or probation. The agreed plea bargain may involve a reduction of the original charge to a lower one, deferred adjudication instead of a conviction, or probation instead of confinement. The prosecutors may even agree to dismiss the case after plea negotiations. With a plea agreement, you know exactly what consequences lie ahead.
On the other hand, you have the choice to enter a plea of not guilty and go to trial. Going to trial is high risk, high reward. If you win, you are acquitted and immediately eligible to have your record expunged. If you lose, you will have a conviction that stays on your record permanently, and a judge or jury will be determining punishment.
We Help With Expunctions For Assault Family Violence Charges
Expunctions completely destroy all traces of an arrest, and you can legally deny ever being arrested for this assault or domestic violence charge after a statutory waiting period. To be eligible for an expunction, one of the following must happen:
- You are acquitted at trial
- Prosecutors dismiss your case
- Your case is resolved as a Class C Misdemeanor with deferred adjudication
- The grand jury issues a no-bill
A nondisclosure normally seals the record from public view after you successfully complete deferred adjudication probation. Once discharged from deferred adjudication probation, the court dismisses the charge, and at the appropriate time, you may petition to have your record nondisclosed. The nondisclosure allows you to not disclose the arrest on job applications, rental applications and other such matters.
When an assault charge involves family violence, however, Texas law prohibits you from getting a nondisclosure. Deferred adjudication probation for a charge involving family violence means you will not be convicted, and the case will be dismissed upon successful completion of probation. But record of the arrest for domestic violence will remain permanently. The inability to non-disclose a family violence charge plays a role in reducing the risk of going to trial, particularly with misdemeanor charges.
Understand The Penalties For Texas Domestic Violence Convictions
Domestic violence charges in Texas incorporate laws from the Texas Penal Code, Family Code, and the Code of Criminal Procedure. These statutes come together under the umbrella term: assault family violence. Criminal charges arise from Chapter 22 of the Texas Penal Code and apply to relationships described by the Family Code. The Family Code also controls the application of Protective Orders while the Penal Code punishes conduct that violates Protective Orders. And the Code of Criminal Procedure sets out the long-term consequences of a domestic violence charge. The interplay of these laws and the consequences they trigger gets complex. That is why it is so important to have a domestic violence defense attorney with a proven track record of success fighting on your behalf.
The following information provides basic breakdowns of domestic violence charges, the conduct they describe and the potential punishments they carry. For more detailed information, contact the Law Office of J. Barrett Wilson, PLLC, today.
Class C Misdemeanor Assault Family Violence
Class C Misdemeanor assault family violence involves making threats of imminent bodily injury or offensive contact. A person commits a Class C offense if:
- Penal Code § 22.01(a)(2): Intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or
- Penal Code § 22.01(a)(3): Intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.
The Texas Penal Code punishes this conduct by a maximum $500 fine with no possibility of jail time.
Class A Misdemeanor Assault Family Violence
Class A Misdemeanor assault family violence involves contact that causes bodily injury to another. A person commits a Class A offense if:
- Penal Code § 22.01(a)(1): intentionally, knowingly or recklessly causes bodily injury to another, including the person’s spouse.
The Texas Penal Code punishes this conduct by a maximum $4,000 fine with a possible sentence of 365 days in the county jail or up to two years of probation.
Felony Assault Family Violence With Previous Conviction
Third-Degree Felony Assault Family Violence involves contact that causes bodily injury to another committed by someone who has a previous assault conviction. A person commits a third-degree felony offense if:
- Penal Code § 22.01(b)(2)(A): It is shown on trial of the offense that the defendant has been previously convicted of an offense under this chapter, Chapter 19, or Section 20.03, 20.04, 21.11, or 25.11 against a person whose relationship to or association with the defendant is described by Section 71.002(b), 71.003, or 71.005, Family Code.
The Texas Penal Code punishes this conduct by a maximum $10,000 fine with a possible sentence of 2 to 10 years in prison or up to ten years of probation.
Felony Assault Family Violence Impede Breath Or Circulation
Third-Degree Felony assault family violence impede breath or circulation involves contact that causes bodily injury due to strangulation. A person commits a third-degree felony offense if:
- Penal Code § 22.01(b)(2)(B): The actor intentionally, knowingly, or recklessly impedes the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth.
The Texas Penal Code punishes this conduct by a maximum $10,000 fine with a possible sentence of 2 to 10 years in prison or up to ten years of probation.
Felony Aggravated Assault Family Violence
Second-Degree Felony assault family violence involves the use of a deadly weapon and/or causing serious bodily injury. A person commits a second-degree felony offense if:
Penal Code § 22.02(a): The person commits assault as defined by § 22.01 and the person:
- Causes serious bodily injury to another, including the person’s spouse; or
- Uses or exhibits a deadly weapon during the commission of the assault
The Texas Penal Code punishes this conduct by a maximum $10,000 fine with a possible sentence of 2 to 20 years in prison or up to ten years of probation.
Don’t Move Forward Alone
If you or your loved one has been charged with assault family violence in Texas, you don’t have to navigate the legal system alone. Schedule your initial consultation with the domestic violence lawyers at the Law Office of J. Barrett Wilson, PLLC, today.
We can discuss the details of your case in a private environment. We’ll walk you through the process of navigating the criminal justice system, and help you make informed decisions about the litigation or negotiation process. To speak with our experienced lawyers, call 469-565-1221 or contact us online.