It is not in their hands anymore, and often people will call my office and say my wife, girlfriend, boyfriend, or husband, we do not want to file charges anymore. That is a misnomer because actually, they did not file the charges. The state of Texas filed the charges. Once the police are called it is out of the alleged victim’s hands. The police arrive. They generally have a zero tolerance policy meaning that if they are called out to an assault and they think there is even a scintilla of evidence that an assault occurred, very often they will make an arrest.
The reason they do that is because they want to protect themselves. Because if they leave the scene and later they are called back out there and there has been a shooting or it is an aggravated assault to a point that someone is seriously hurt, then very often the media and the newspapers will blame the police. So it is my experience that if police are called out to a domestic assault situation and they believe that there is the slightest amount of evidence that an assault occurred, they will arrest someone.
The Potential Consequences of a Domestic Violence Conviction in Texas
If someone is convicted of a domestic violence charge, even if they are given a deferred probation; which, under most circumstances is not considered a conviction and cannot be used against someone in the future, if they commit some other type of crime. For example, if someone has been given a deferred probation for possessing marijuana and a year later they pick up another marijuana case, that previously deferred adjudication cannot be used against them.
That is just the opposite in a domestic violence case. If someone has never been in trouble before and they are charged with Class A domestic violence assault and given deferred probation and later in their life, they pick up another domestic violence assault that is automatically going to be upgraded to a felony, because they have that previously deferred probation. Domestic violence does carry an enhancement in and of itself, even if you are not convicted of it, but you are given deferred type probation.
In the State of Texas, if someone had a handgun license and they were arrested for domestic violence, they have not been convicted yet, they have just been arrested. They are supposed to send their handgun license to the Department of Public Safety and turn it in. If they take any type of probation as a penalty on that domestic violence case, they are going to lose their handgun license and be prohibited from owning a handgun license or any type of firearm in the future. If they are on deferred probation for a domestic violence offense, federal law prohibits them from owning or possessing a firearm.
When Does Prosecution Introduce Evidence of a Defendant’s Past Domestic Violence?
If it is the same victim that was the victim in the previous domestic violence charge or conviction, evidence in a new case with that same victim can be introduced if this person has assaulted them before. It can be introduced in the prosecution’s case. Meaning, a person is charged with assault now. Five years ago they assaulted the same person. If they go to trial that evidence often is going to come into evidence that there has been a previous allegation of assault.
Does Voluntary Counseling Help A Domestic Violence Case?
I evaluate whether someone should voluntarily get counseling or anger management counseling on a case by case basis. I find that it is helpful, especially if the person does not have a previous criminal record. Unless, say, they are accused of assaulting their girlfriend or their wife, but the couple is going to remain together, they want to stay together and work out their problems. I will meet with the victim and I will meet with my client and I will give them legal counsel that they should go seek marriage counseling together as a couple, and that my client should also seek counseling on his own. I want reports from the counselor on a weekly basis.
Then at some point during the case, I have found it very beneficial to give that to the prosecutor, because on the flipside, if the couple wants to work their marriage out, there has been an assault, but they want to work it out, very often that alleged victim has contacted the prosecutor, or when the prosecutor contacts the victim, the victim tells them hey, it happened, but my husband was intoxicated, or he has been under a lot of stress at work, or maybe I aggravated it or something, but we are going to work it out and seek counseling. Very often that can be used as mitigation evidence in the case and to the benefit of my client.
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