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TOP 10 MISTAKES DEFENDING TEXAS FAMILY VIOLENCE CASES

By Michael Lowe, Esq.
As a Texas Board Certified Criminal Defense lawyer who has practiced criminal law in Dallas for
over two decades, I have seen all sorts of errors committed both by prosecutors and defense
counsel in family violence cases. However, some mistakes
seem to happen with great regularity; so much so, that Ive
created this list of the Top Ten Mistakes made in defending
people accused of violent acts in family or domestic violence
situations.
From my perspective and experience, here are the ten most
common errors made in defending family violence cases in
Texas:
1. Take the first offer.
As a former chief prosecutor of an Assault family violence court in Dallas County, I can assure
you that the offers will get better. Dont ever accept the first thing the DA offers on your case.
Ive handled thousands of these cases and Ive never seen the offers get worse instead of better
over time. The States evidence generally gets worse over time. Typically, witnesses forget
what happened, or they cant be located. Its very common for the complaining witness to
change his/her mind about whether to prosecute the case at all. Of course, this isnt a get out
of jail free card, but it can help.
If you arent getting an offer that makes it possible to have your record expunged later on, you
should probably set your case for trial. Setting the case for trial will get the DAs attention on
your case for sure.
Most prosecutors dont look carefully at their cases until they are set for trial. Mostly, they
arent even thinking about how they will prove their case until one week before trial. Its a
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numbers game. They cant keep up with their case load so they prioritize their attention to
those cases set for trial.
2. Take deferred adjudication.
For most other criminal cases, deferred adjudication can be a very good option. In other types
of cases, it can enable someone to get their record cleared up later on. However, cases
involving family violence are different.
Your lawyer needs to fully understand the Texas Nondisclosure laws. I am the only attorney in
Texas that has ever successfully appealed a Nondisclosure; consequently, I have taught other
attorneys at CLE (continuing legal education) seminars how to do get their clients records
sealed. You can read that case, Fulgham v. State of Texas, 170 S.W.3d 836 (Tex.App.- Corpus
Christi-Edinburg, 2005), in my digital library.
You need to look at 411.081(e) of the Texas Government Code. Any case involving family
violence as defined by 71.004, Family Code makes the nondisclosure applicant INELIGIBLE for
any nondisclosure thereafter, which includes the immediate offense of assault family violence.
This means that even though you are getting a deferred, you cannot get your record cleared up,
EVER! Not only that: its the gift that keeps on giving. That is, any case involving family,
whether its a deferred or a conviction, disqualifies the applicant for any other case may get in
the future.
Of course, the same rule applies for any offense that statutorily requires registration as a sex
offender. (Isnt that nice?) The Texas legislature puts family violence defendants in the same
boat with sex offenders. I dont want to get into the definition of family violence because that
would be a whole other topic. Suffice it to say that the definition is much broader than you
probably think and it doesnt really mean family.
One of the most common errors I see other lawyers make is that they think if the judge doesnt
make a finding of family violence then their client can be eligible to get their record cleared
up. If youve read this read far, then you know those lawyers are screwing their clients cases
up big time. As long as the case involves family violence, the client is ineligible. Theres no
requirement that a find be made; end of story.
So the bottom line is that you cant take a deferred adjudication on a Class A misdemeanor
family violence Assault case, or any other Family Violence case like Aggravated Assault,
Impeding Airflow, Assault F/V with a prior conviction or Continuous Assault Family Violence
under Penal Code 22.10 (b) or (b-1).
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3. Affirmative Finding is never a legitimate bargaining chip.
If youve read this far, then you know why the affirmative finding of family violence is useless
when it comes to a defendants record. It simply doesnt matter. See number 2 above for an
explanation.
4. Never set case for trial.
Ive explained this one in number 1 above. Bottom line, the prosecutor isnt going to give you
best offer unless you are willing to fight or your lawyer has a reputation for fighting and
winning.
5. Dont get the 911 tape.
The 911 tape is very important in a family violence case. This is because of Crawford vs.
Washington. Ive prepared an online legal procedure guide for folks charged in Family Violence
Assault cases.
In my guide I explain in detail the ramifications of Crawford and some of the Texas cases that
interpret the meaning of testimonial. Your lawyer needs to be expert on this area of law, as I
am.
This is important stuff because it affect whether or not you can exercise your sixth amendment
right to confront and cross-examine a witness in open court. There as several Texas cases
holding 911 tapes are mostly non-testimonial. This means they are coming into evidence if the
State can otherwise authenticate the voices and your lawyer cant come up with any other
objections as to why some of the tapes content ARE testimonial.
There are some good arguments to be made to keep this statement out of evidence, but I dont
want to go too far off course here. All you need to know is that the 911 tape can be used
against you even if your complainant spouse, girlfriend or boyfriend isnt otherwise available to
testify.
Your lawyer needs to get a copy of the tape and you need to ask him whether its going to be
admissible at trial against you. If he cant answer these questions, find another lawyer.
6. Dont contest the protective order.
I go into this in much greater detail in my Family Violence guide, but it bears repeating. In
many family violence cases, the District Attorneys office will serve you with a Petition alleging
that you committed family violence and they are seeking a court order to keep you away from
the so called victim.
This petition is filed pursuant to Texas Family Code section 85.022 claiming that family violence
occurred in the past and is likely to occur in the future as well. Texas Family Code section
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85.001. The order is good for up to two years. The order will also revoke your concealed
handgun license.
The judge will also make you complete a Battering Intervention and Prevention Program (BIPP).
This is a 6 months affair and can be a huge pain in the butt to finish, especially if you have a job
and need travel. I have gotten some excellent discovery at these hearing. The state will be
required to put on their evidence concerning family violence.
Because the state is also required to demonstrate that family violence will happen in the future,
the victim tends to exaggerate his/her claims of family violence. Of course, I want them to
exaggerate their claims, so I can show that they are lying and can use that later on at trial.
Furthermore, I can and have successfully subpoenaed police officers to testify favorably for my
client at these hearings. This hearing is a great opportunity for the Defendant and should never
be ignored. If you dont show up, the judge will take a default order against you and order you
to attend BIPP. You cant go down like that!
7. Choking or Impeding Airflow cases MUST involve a family member.
I have been seeing more and more choking or impeding airflow cases filed. It seems like the
police officers in North Texas are being trained to get the complainant to say they were choked
even when the Defendant never laid a hand on their neck.
Aside from the normal problem the State has with case later on at trial, one thing they often
overlook is that these cases MUST involve a family member. Well, this should be obvious, right?
Nope. I represented an SMU student that allegedly choked his suitemate in the dorm room. I
got his impeding airflow case no billed, not because my client didnt choke his suitemate, but
because they werent family members under the family code 71.004.
Bottom line: It MUST be shown that the Defendant and complainant were members of the
same household as defined by the Texas Family Code 71.005.
8. Do your Crawford vs. Washington homework.
I am sure youve noticed by now that I mention this case, Crawford vs. Washington, a lot. Its
for good reason. It is very common for witnesses to become unavailable when the trial date
comes. I wont go into much more detail here since I cover this issue very well in my In-depth
article on legal procedures in assault and family violence cases.
You need to fully know whether and to what extent out of court hearsay statements can be
used against you at trial. I have tried many of these family violence cases. There hasnt been a
single Assault case I havent tried where I didnt carefully consider the evidence admissibility
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issues related to hearsay both as a Family Violence DA and as a Board Certified Criminal
Defense Lawyer.
9. Just get the affidavit of non-prosecution signed and its over, right?
Well, its not that easy. First of all, the affidavit has no legal effect. I explain why in my Family
Violence guide.
However, if you are a complainant and you think you are going to help your loved one by
signing the States affidavit of non-prosecution, think again. The primary purpose for the state
offering the affidavit of non-prosecution is to counsel you to cooperate with them. They will
want to know where you are living, where you work, who your immediate local family members
are.
Why? So, they can subpoena you and force you to testify against your loved one. If the
affidavit cant help and it can potentially hurt your loved one, you might reconsider. Family
violence cases are rarely as simple as: step (1) sign affidavit of non-prosecution, step (2) case
dismissed. There a lot more to it than that.
10. Hiring your divorce lawyer to handle your criminal family violence case.
This is not a criticism of divorce lawyers. I know some very fine ones. However, they have no
idea what they are doing in criminal cases.
The rules of procedure are totally different and theres this strange group of folks gathering in
the hallway before trial called jurors. Thats right. Divorce lawyers rarely, if ever see a real
jury trial. The only issue that a jury can decide in a divorce case is child custody, some asset
valuation and geographic restrictions on where your former spouse can live. Family law
attorneys rarely, if ever, are called to resolve issues concerning family violence in front of a jury.
Having said this, it is very common for me to see divorce lawyers at the courthouse handling
very serious family violence cases. I dont mind lending them a hand but its really best left to
the criminal defense experts, in my opinion.
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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 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.