FAMILY VIOLENCE



BETTY BLACKWELL

Attorney at Law

Board Certified in Criminal Law

1306 Nueces Street

Austin, Texas 78701



TABLE OF CONTENTS

Page

Table of Authorities.................................................................................... iii

2011 Legislation......................................................................................... 1

2009 Legislation......................................................................................... 2

2007 Legislation......................................................................................... 3

2005 Legislation......................................................................................... 4

Punishment Enhancements............................................................................... 5

Prior Conviction......................................................................................... 7

Deferred Adjudication.................................................................................... 9

Deadly Weapon......................................................................................... 11

Affirmative Finding of Family Violence..................................................................... 11

Apprendi Issue......................................................................................... 13

Proportionality......................................................................................... 13

Chapter 5 of the Code of Criminal Procedure......................................................................................... 13

Collateral Consequences...................................................................................... 14

Deportation............................................................................................ 14

Federal Firearms Violations......................................................................................... 14

Protective Orders......................................................................................... 16

State Law Prohibiting Firearm Possession.........................................................................................16

Custody of Children......................................................................................... 17

Spousal Maintenance......................................................................................... 18

Emergency Protective Orders......................................................................................... 18

Evidentiary Issues......................................................................................... 18

Excited Utterances......................................................................................... 18

6 th Amendment Violation......................................................................................... 20

What is testimonial......................................................................................... 21

Inconsistent Hearsay......................................................................................... 26

Marital Privilege......................................................................................... 27

Due Process to Present a Defense......................................................................................... 27

Expert Testimony......................................................................................... 27

Medical Testimony......................................................................................... 28

38.26 Code of Criminal Procedure......................................................................................... 29

Violations of Protective Orders......................................................................................... 29

Forgetful State's Witness......................................................................................... 31

Defensive Issues......................................................................................... 33

Who Is the Aggressor......................................................................................... 33

Criminal Record of the Victim......................................................................................... 34

Bias of the Witness......................................................................................... 34

Consent or Mutual Combat......................................................................................... 35

Evidence of the Defendant's Good Character......................................................................................... 36

Self Defense......................................................................................... 36

Defense Motions

Motions to File......................................................................................... 37

Motion to Quash......................................................................................... 37

Motion for Discovery......................................................................................... 37

Motion to Suppress......................................................................................... 37

Request for Notice......................................................................................... 37

State's Motions......................................................................................... 38

Ethical Dilemmas for the Defense......................................................................................... 38

Conflict of Interest......................................................................................... 38

Fear of False Testimony......................................................................................... 38

Avoiding a Subpoena......................................................................................... 39

What is a Valid Subpoena......................................................................................... 39

Ethical Dilemmas for the State......................................................................................... 39

Article 5.06 C.C.P.......................................................................................... 40

Dealing with Prose Defendants......................................................................................... 41

Conclusion......................................................................................... 41


TABLE OF AUTHORITIES

Page

Aguilera v. State,

75 S.W.3d 60 (Tex.App.-S.A. 2002) . . . . . . . . . . . . 19

Allen v. State,

253 S.W.3d 260 (Tex.Crim. App.2008)

263 S.W.3d 168 (Tex. App.-Hous.[1 Dist.] 2007). . . . . . . . . . . . . . . . . . . . .36

Alonzo v. State,

67 S.W.3d 346 (Tex.App.-Waco 2001) 27

Ames v. State,

499 S.W.2d 110, 114 (Tex.Cr.App.1973) 30

Apolinar v. State,

155 S.W.3d 184 (Tex.Cr.App.2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Apprendi v. New Jersey,

530 U.S.466 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Arroyo v. State,

117 S.W.3d 795 (Tex.Cr.App. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

123 S.W.3d 517 (Tex.App.-S.A. 2004)(pet. ref'd). . . . . . . . . . . . . . . . . . . . . .34

Armstead v. State,

977 S.W.2d 791 (Tex.App.-Ft. Worth 1998) 32

Arzaga v. State,

86 S.W.3d 767 (Tex.App.-El Paso 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . .28

Barley v. State,

906 S.W.2d 27, 37 n. 11 (Tex.Cr.App.1995), cert. denied,

516 U.S. 1176, 116 S.Ct. 1271, 134 L.Ed.2d 217 (1996) 31

Billodeau v. State

277 S.W.3d 34 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Bollman v. State,

629 S.W.2d 54, 55 (Tex.Cr.App.1982) 30

Bufkin v. State,

207 S.W.3d 779 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . .36

Collins v. State,

955 S.W.2d 464, 467 (Tex.App.-Ft. Worth 1997) 30

Comeaux v. State,

151 S.W.3d 710 (Tex.App.-Beaumont 2004) . . . . . . . . . . . . . . . . . . . . . . . . . .11

Crawford v. Washington,

124 S.Ct. 1354, 541 U.S.36 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Davis v. State,

169 S.W.3d 660 (Tex.App.-Austin 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

affirmed by 203 S.W.3d 845 (Tex. Crim. App. 2006)

Davis v. State,

177 S.W. 3d 355 (Tex.App.-Houston [1 st Dist] 2005) . . . . . . . . . . . . . . . . . 26

Davis v. Washington,

126 S.Ct. 2266 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

De la Paz v. State

273 S.W.3d 671 (Tex. Crim. App. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Ex parte Boyd,

58 S.W.3d 134 (Tex.Cr.App. 2001) 13

Ex parte Smith,

296 S.W.3d 78 (Tex. Crim. App. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Gannaway v. State,

823 S.W.2d 675, 678 (Tex.App.-Dallas 1991) 32

Garcia v. State,

126 S.W.3d 921 (Tex. App.-Dallas 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Garcia v. State,

201 S.W.3d 695 (Tex.Cr.App. 2006) . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . 29

Georgia v. Randolph,

547 U.S. 103, 126 S. Ct. 1515 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Giles v. California,

128 S.Ct. 2678 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Gongora v. State,

214 S.W.3d 58 (Tex. App.-Ft. Worth 2006). . . . . . . . . . . . . . . . . . . . . . . . . . 23

Gonzalez v. State,

195 S.W.3d 114 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Gonzalez v. State,

301 S.W.3d 393 (Tex. App. El Paso 2009). . . . . . . . . . . . . . . . . . . . . . . . . 28

Green v. State,

700 S.W.2d 760 (Tex.App.-Hous. [14 Dist.] 1985) 36

affirmed by 727 S.W.2d 272 (Tex. Crim.App. 1987)

Hammer v. State,

296 S.W.3d 555 (Tex. Crim. App. 2009). . . . . . .. . . . . . . . . . . . . . . . . . . . . .35

Harmelin v. Michigan,

501 U.S. 957 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Harvey v. State,

48 S.W.3d 847 (Tex.App.-Austin 2001) 31

78 S.W.3d 368 (Tex.Cr.App. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Haynes v. State,

254 S.W.3d 466 (Tex.App.-Hous.[1Dist.]2007) . . . . . . . . . . . . . . . . . . . . . . 6

273 S.W.3d 183 (Tex. Crim. App. 2008)

Holmes v. South Carolina,

126 S.Ct. 1727, 547 U.S. 319 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Hughes v. State,

128 S.W.3d 247 (Tex.App.-Tyler 2003)(pet. ref'd) . . . . . . . . . . . . . . . . . . . .20

Jordan v. State,

36 S.W.3d 871 (Tex.Cr.App. 2001) 11

Kearney v. State,

181 S.W.3d 438 (Tex.App.-Waco 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Lane v. State,

151 S.W.3d 188 (Tex.Cr.App. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Langham v. State,

305 S.W.3d 568 (Tex. Crim. App. 2010). . . . . . . . . . . .. . . . . . . . . . . . . . . .23

Lee v. State,

799 S.W.2d 750, 752-54 (Tex.Cr.App.1990) 30

Lindsey v. State,

672 S.W.2d 892 (Tex.App.-Dallas 1984) 9

Logan v. State,

71 S.W.3d 865 (Tex.App.-Ft. Worth, 2002) 26

Martinez v. State,

178 S.W.3d 806 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . .19

Mason v. State,

173 S.W.3d 105 (Tex.App.-Dallas 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Marcel v. State,

64 S.W.3d 677(Tex.App.-Hous.[1 Dist] 2001) 26

Michigan v. Bryant,

131 S.Ct. 1143 (2011). . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Mozon v. State,

991 S.W.2d 841 (Tex.Cr.App. 1999) 33

Ohio v. Roberts,

100 S. Ct. 2531 (1980) 20

Pomier v. State,

326 S.W.3d 373 (Tex. App.-Hous (14 th Dist.) 2010) . . . . . . . . . . . . . . . . . . . 6

Pruitt v. State,

770 S.W.2d 909, 910-11 (Tex.App.-Ft. Worth 1989, pet. ref'd) 32

Ramos v. State,

923 S.W.2d 196 (Tex.App.-Austin 1996) 31

Reyes v. State,

314 S.W. 3d 74 (Tex. App.-San Antonio 2010). . . . . . . . . . . . . . . . . . . . . . . 6

Reyes v. State,

48 S.W.3d 917 (Tex.App.-Ft. Worth, 2001) 19

Rodriguez v. State,

71 S.W.3d 778 (Tex.App.-Texarkana 2002) 13

Rodriguez v. State,

274 S.W.3d 760 (Tex. App.-SA 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Rogers v. State,

200 S.W.3d 233 (Tex.App.-Hous.[14 Dist] 2006) . . . . . . . . . . . . . . . . . . . . . 7

Rohrscheib v. State,

934 S.W.2d 909 (Tex.App.-Hous. [1 Dist.] 1996) 30

Rubio v. State,

241 S.W.3d 1 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Santacruz v. State,

237 S.W.3d 822 (Tex. App.-Hous [14 th Dist.] 2007). . . . . . . . . . . . . . . . . . .24

Schutz v. State,

957 S.W.2d 52, 59 (Tex.Cr.App. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . .28

Scott v. State,

55 S.W.3d 593 (Tex.Cr.App. 2001) 9

Sheppard v. State,

5 S.W.3d 338 (Tex.App.-Texarkana 1999) 8

Sills v. State,

846 S.W.2d 392(Tex.App.-Hous. [14 Dist.] 1992) . . . . . . . . . . . .. . . . . . . . 32

Skillern & Son, Inc., v. Rosen,

359 S.W.2d 298 (Tex. 1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Small v. State,

809 S.W.2d 253 (Tex.App.-San Antonio 1991, pet. ref'd) 30

Smith v. State,

61 S.W.3d 409 (Tex.Cr.App. 2001) 20

Sohail v. State,

264 S.W.3d 251 (Tex. App.-Hous[1st Dist.] 2008). . . . . . . . . .. . . . . . . . . . . 25

Solem v. Helm,

463 U.S. 277 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

State v. Eakins,

71 S.W.3d 443 (Tex.App.-Austin, 2002) 11

State v. Mason,

980 S.W.2d 635 (Tex.Cr.App. 1998) 7

State v. McCoy,

64 S.W.3d 90 (Tex.App.-Austin 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

State v. Meadows,

170 S.W.3d 617 (Tex.App.-El Paso 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . 37

State v. Newsom,

64 S.W.3d 478 (Tex.App.-El Paso, 2001) 11

Tanner v. State,

2011WL667883, decided February 24, 2011 (Tex. App.-Ama.). . . . . .. . . . 12

Texas v. Mason,

127 S.Ct. 68 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23

Thomas v. State,

897 S.W.2d 539 (Tex.App-Ft. Worth 1995) 34

Torres v. State,

71 S.W.3d 758 (Tex.Cr.App. 2002) 34

117 S.W.3d 891(Tex.Cr.App. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

U.S. v. Emerson,

270 F.3d 203(5th Cir. 2001) 16

U.S. v. Hagen

349 Fed. Appx.896, 2009WL3294785 (C.A.5 (Tex.)). . . . . . . . . . . . . . . . . 15

U.S. v. Villegas-Hernandez,

468 F.3d 874 (5 th Cir. 2006 . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . .15

U.S. v. White,

258 F.3d 374 (5th Cir. 2001) 15

Villarreal v. State,

286 S.W.3d 321 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Vinson v. State,

252 S.W.3d 336 (Tex. Crim. App. 2008) on remand

266 S.W.3d 65 (Tex. App. Hous 1 st 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Wall v. State,

184 S.W.3d 730 (Tex.Cr.App. 2006) 21

Wall v. State,

417 S.W.2d 59 (Tex.Cr.App. 1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32

Walter v. State,

209 S.W.3d 58 (Tex.App.-Texarkana 2006) . . . . . . . . . . . . . . . . . . . . . . . . .23

267 S.W.3d 883 (Tex. Crim. App. 2008)

Wells v. State,

241 S.W.3d 172 (Tex. App. Eastland 2007) . . . . . . . . . . . . . . . . . . . . . . . . . .23

White v. State,

201 S.W.3d 233 (Tex.App.-Ft. Worth 2006) . . . . . . . . . . . . . . . . . . . . . . . 33

Willover v. State, reversed by Davis v. State 4/7/05

38 S.W.3d 672 (Tex.App.-Hous. [1 Dist.] 2000) 26

Wilson v. State,

151 S.W.3d 694 (Tex.App.-Ft. Worth 2004) . . . . . . . . . . . . . . . . . . . . . . . . . .21

Winchester v. State,

246 S.W.3d 386 (Tex. App. Amarillo 2008).. . . . . . . . . . . . . . . . . . . . . . . . .113

Word v. State,

206 S.W. 3d 646 (Tex.Cr.App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

Yount v. State,

872 S.W.2d 706 (Tex.Cr.App. 1993) 28

Zapata v. State,

232 S.W.3d 254 (Tex. App.-Hous [1 st Dist.]2007). . . . . . . . . . . . . . . . . . . . .24

Zule v. State,

802 S.W.2d 28 (Tex. App.-Corpus Christi 1990). . . . . . . . . . . . . . . . . . . . . . 33

Zuliani v. State,

97 S.W.3d 589 (Tex.Cr.App. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19


FAMILY VIOLENCE


2011 LEGISLATION:

HB901 would substantially amend Chapter Eight of the Texas Family Code providing for spousal maintenance. It would require a showing that the spouse would lack sufficient property for their minimum reasonable needs and a conviction or deferred adjudication for an act of family violence during the marriage against the spouse or child. The act had to occur within two years of the date of the filing for the dissolution of the marriage or while the suit was pending.

If a spouse is eligible under other sections of 8.051, for example, a marriage longer than 10 years, then in determining the amount, and duration of the payments, the courts would be allowed under 8.052 to consider:

martial misconduct including adultery and cruel treatment, by either spouse during the marriage [of the spouse seeking maintenance]; and

(11) any history or pattern of family violence, as defined by Section 71.004

The duration of the payments would be extended from a maximum of three years to five years and longer upon dissolution of a marriage longer than 10 years. The maximum payment would be the lessor of $5000.00 instead of $2500.00 or 20% of the spouse's monthly gross income.

HB901 on May 5 th , 2011 was sent to the Governor.

Sec. 84.006. HEARSAY STATEMENT OF CHILD VICTIM OF FAMILY VIOLENCE. In a hearing on an application for a protective order, a statement made by a child 12 years of age or younger that describes alleged family violence against the child is admissible as evidence in the same manner that a child's statement regarding alleged abuse against the child is admissible under Section 104.006 in a suit affecting the parent-child relationship.Effective 9/1/2011.

SB116 will amended Section 71.0021(a) of the Family Code to change definition of dating violence. This did not pass in 2009 but is on tract to pass this session. Dating violence means an act by an actor that is against an individual with whom the actor has or has had a dating relationship, or against another individual who is in a dating relationship with an individual with whom the actor is or has been in a dating relationship or marriage.

The bill analysis states that under current law, a person in a dating relationship with another individual or married to an individual with whom an actor was in a prior relationship, is not eligible to apply for a protective order if he or she is targeted for violence by the actor. Presently, protective orders stemming from "dating violence" and "family violence" do not include these third parties; only the individual who was in a prior relationship with the actor is protected under law.

SB279 would add as a violation of Penal Code Section 25.07 if the person harms, threatens, or interferes with the care, custody, or control of a pet, companion animal, or assistance animal that is possessed by a person protected by the order.

SB250 would allow protective orders under Chapter 7A of the Code of Criminal Procedure for victims of stalking.

HB549 would not allow a person charged under Chapter 19 with a crime involving family violence against a decedent to control the disposition of the remains of the decedent.

HB1723 would create the new crime of repeated violations of certain court orders or conditions of bond by adding Section 25.072 to the Texas Penal Code. It would be similar to continuance family violence where two or more acts which would be offenses under 25.07 of the Penal Code are committed within a 12 month period. The new offense is a 3 rd degree felony.

SB819 would add that a person who is in a dating relationship may apply for a protective order even if they are a child.

SB789 allows a protective order to be extended beyond a two year period if certain conditions are met.

Bills sent to the Governor after the regular session can be vetoed up until June 19 th , 2011.

2009 LEGISLATION :

HB 2066 created the 3 rd degree felony offense of strangulation. Section 22.01 is amended to add intentionally, knowingly, or recklessly impeding 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. Effective 9/1/2009.

HB 2240 added Section 25.11 of the Penal Code to create the new offense of Continuous Violence Against the Family. If during a 12 month period, the person engages in two or more acts of violence family, the offense is a third degree felony. Effective 9/1/2009.

SB 82 mandates that if a judge grants community supervision to a person convicted of family violence, the judge shall require the person to pay $100.00 to a family violence center. Effective 9/1/2009.

HB1506 authorizes a magistrate to require as a condition of bond that a defendant charged with family violence, wear a global position monitoring system device and if the alleged victim consents, the defendant can be required to pay the cost of a electronic receptor device that will notify the victim if the defendant is nearby. Effective 9/1/2009.

2007 LEGISLATION:

The most significant new law of the 80 th Legislature was HB3692 and corresponding HJR 6 which provided for a constitutional amendment and the enabling legislation to deny bail in certain family violence cases.

HB3692 became effective January 1, 2008 after the constitutional amendment was passed. It created a new crime under Section 25.07 of the Penal Code entitled Violation of Certain Court Orders or Condition of Bond in Family Violence Case. The new crime adds violation of a condition of bond set in a family violence case or of an emergency protective order granted pursuant to Article 17.292 C.C.P. to the Code. Added to the sections is the new language "or condition of bond". If the violation of bond or EPO is committing an assault or stalking, the offense is a third degree felony.

Article 17.152 C.C.P. is amended to require a hearing within 48 hours of arrest on an offense under Section 25.07 Penal Code, with notice to the state. At the hearing, the magistrate is to make the determination of whether the conditions are met to deny bond.

Article 17.152(b) states that a person who commits the offense of violation of a condition bond set in a family violence case and whose bail is revoked or forfeited for the violation, may be taken into custody and denied release on bail if the magistrate determines by a preponderance of the evidence that the person violated a condition of bond related to the safety of the victim, or the safety of the community.

Article 17.152(c)provides that a person who commits an offense under Section 25.07 Penal Code, other than a violation of a condition of bond, may be taken into custody and denied bail if the magistrate determines by a preponderance of the evidence that the person committed the offense.

Article 17.152 (d) provides that a person who violates the provision relating to going to or near a placed described in the order or condition of bond, may be denied bail, if the judge determines by a preponderance of the evidence that it was done with the intent to commit or threatening to commit family violence or stalking.

Article 17.40 of the Code was amended to provide that at the hearing to determine if the defendant violated a condition of bond, if the court finds the violation, the defendant's bond shall be revoked and he shall be immediately returned to custody.

It appears that to deny bail on a violation of a condition of bond, there must be two hearings. The first the original bond must be revoked and then the judge must make the determination that the violation related to the safety of the victim or the community in order to deny bond on the Article 25.07 offense.

Section 411.081(e) of the Government Code relating to Orders for Nondisclosure of criminal records was clarified to state that it is not available for a person placed on deferred adjudication for an offense involving family violence by adding the language if the person was placed on deferred adjudication for a case involving family violence. This language was added effective September 1, 2007.

2005 LEGISLATION:

SB91 by Hinojosa added "dating violence" to the enhancements for inclusion in "family violence" definition. Dating violence is defined in 71.0021(a) of the Family Code as:

an act by an individual that is against another individual with whom that person has or has had a dating relationship and that is intended to result in physical harm, bodily injury, assault or sexual assault or that is a threat that reasonably places the individual in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself.

(b) For the purposes of this title "dating relationship" means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of:

(1) the length of the relationship;

(2) the nature of the relationship; and

(3) the frequency and type of interaction between the persons involved in the relationship.

(c) A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a "dating relationship" under Subsection (b).

Assault with injury was elevated to a 3 rd degree felony if it is against (2) a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code, and it is shown at trial that the defendant has previously been convicted of an offense under this chapter against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code.

The change in law made by this Act applies only to an offense committed on or after September 1, 2005.

SB90 by Hinojosa amended Article 14.03 of the Code of Criminal Procedure (a) Any peace officer may arrest, without warrant: (4) persons who the peace officer has probable cause to believe have committed an offense involving family violence; [assault resulting in bodily injury to a member of the person's family or household; or]

(f) In this article, "family violence" has ["family," "household," and "member of a household" have] the meaning [meanings] assigned [to those terms] by Section 71.004 [Chapter 71], Family Code.

71.004 of the family Code defines family violence to include "dating violence" as defined by Section 71.0021. Effective 9/1/2005

PUNISHMENT ENHANCEMENTS

Article 22.01 of the Texas Penal Code was amended on September 1, 1999 to change the punishment range on a Class A misdemeanor assault based on a finding that the offense involved family violence and the defendant had been previously convicted of an offense involving a family or household member. Article 22.01 (b) (2). The Class A misdemeanor is raised to a third degree felony. The previous 1995 legislation elevated an assault to a state jail felony upon "proof of conviction of an offense against a family member two or more times." That law remains in effect for offenses committed before September 1, 1999.

The 2005 law also enlarged the group of victims from family members to include household members and those with whom the person has had a dating relationship as defined by the Family Code.

Applicable Family Code provisions:

Section 71.003: "Family" includes individuals related by consanguinity or affinity, as determined under Section 573.022 and 573.024 Government Code, individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parents, without regard to whether those individuals reside together.

Section 71.005 "Household" means a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other.

Section 71.006 "Member of a household" includes a person who previously lived in a household.

Haynes v. State, 254 S.W.3d 466 (Tex. App. Hous.[1Dist.]2007) reviewed the sufficiency of the evidence to elevate an assault to a 3 rd degree felony when the only evidence presented was that the victim had previously been a member of the defendant's household. The case was tried under the 2003 version of the Penal Code which stated that the Class A misdemeanor was elevated to a 3 rd degree felony if the assault was committed against "a member of the defendant's family or household". Household was then defined in reference to the definition set out in Section 71.005 of the family code that states that it is a unit of persons living together. Section 71.006 provides that household includes persons who previously lived in a household. Neither the 2003 Penal Code or the current Section 22.01 mention Section 71.006.

In Haynes, the appellate court was called on to determine if a former member of the household met the statutory definition. The Court held that it did not. The Court points out that the legislature could have incorporated the expanded version of Section 71.006 of the Family Code into the Penal Code, but it did not.

The Court held that the Penal Code which expressly refers to 71.005 does not authorize the State to use Family Code section 71.006 to define who constitutes a household member. The Court reversed and rendered a judgment of acquittal. The case was affirmed on appeal in 273 S.W.3d 183 (Tex. Crim. App. 2008) holding that the judgement could not be reformed to the misdemeanor assault since that lessor included offense was not submitted to the jury.

In Reyes v. State, 314 S.W.3d 74 (Tex. App. San Antonio 2010), the Court held that evidence of the prior assault was an element of the offense and not merely an allegation for the purpose of enhancement. It must be alleged, charged and proven prior to conviction. The Court held that the date of the prior conviction was not an element of the offense and although an incorrect date was alleged, that did not make the evidence of the prior conviction insufficient.

However, a different result occurs when the offense involves continuing activity. Under the stalking statute proof of more than on incident is required just as the new Continuous Family Violence statute requires proof of two more acts within a twelve month period. Pomier v. State, 326 S.W.3d 373 (Tex. App.-Hous (14 th Dist.) 2010) held that if one of the acts used to establish the stalking offense occurred before the effective date of the amendment, then the prior stalking law should apply. In that felony stalking case, the Court found that the district court had jurisdiction, but only for the misdemeanor offense of stalking and the case was remanded for a new punishment hearing. The same analysis would apply to the new continuous family violence statute. If any of the acts occurred prior to September 1, 2009, then the offense would be controlled by the prior statute and it would allege a misdemeanor assault, not the felony.

PRIOR CONVICTION

Section 71.004 Family Code defines "family violence" as including actions that intend to cause bodily injury to a family member and actions that place a family member in fear of imminent bodily injury, among other things. Thus, a family violence finding is not tantamount to a finding that bodily injury occurred.

"Thus, enhancement under this subsection required proof only of a prior conviction for assault against a family member; it did not require proof that bodily injury resulted from the prior assault. Appellant does not dispute that his prior conviction was for assault against a family member; he argues only that the State failed to prove bodily injury as alleged in the indictment." Rogers v. State, 200 S.W.3d 233 (Tex. App. Hous [14 Dist] 2006) The issue was specifically if there was a fatal variance because the indictment alleged family violence with bodily injury but the judgment only said family violence. The court held that there was no material variance because the state is only required to show a prior conviction for family violence, not bodily injury.

Many class "C" assaults are disposed of by a plea of no contest and completion of deferred disposition. This eventually results in a dismissal of the charge. However, there is an argument that the class "C" deferred disposition on a family violence case could elevate an assault with bodily injury to a third degree felony.

The Texas Court of Criminal Appeals has clearly held that the facts of the prior convictions are elements of the crime. In State v. Mason, 980 S.W.2d 635 (Tex.Cr.App. 1998), the Court of Criminal Appeals reviewed a case involving the possession of a firearm by a felon. Based on prior case law, the lower courts had held that the defendant's status as a convicted felon and the date on which he was convicted were both elements of the offense.

After analysis, the Court of Criminal Appeals concluded that in spite of the language of the statute, the Legislature did not intend for the date of the prior conviction, but only the fact of the conviction, to be an element of the offense. The court stated that the concept of the elements of an offense does not include every issue on which the State has the burden of proof. See State v. Mason, 980 S.W.2d at 641. Therefore, the Court concluded that the date of the underlying offense is not an element of the offense for the purposes of the statute on punishment.

The Penal Code defines elements of the offense as (a) the forbidden conduct, (b) the required culpability, (c) any required result, and (d) the negation of any exception to the offense. TEX. PEN CODE ANN. § 1.07(a)(22) (Vernon 1994).

In Sheppard v. State, the defendant was convicted of a felony family violence assault. On appeal he raised the issue that the trial court erred by sentencing him to jail, because the applicable statute requires that if any element of the offense occurred before the date that the amendments to the statute went into effect, the earlier version of the statute controlled. Sheppard v. State, 5 S.W.3d 338 (Tex.App.-Texarkana 1999).

The offense for which Sheppard was convicted occurred after the effective date of the amended statute, but the prior convictions occurred before the statute was amended. Sheppard contends that the two prior offenses, which were required to be proven in order to raise this offense to a state jail felony, are elements of this offense. Because they occurred before the effective date of the amendment, Sheppard argued that the prior statute should control the disposition of this case.

"For the reasons stated in Mason, we conclude that, although the fact of the prior offenses is an element of the offense, the dates of the convictions for the prior offenses are not elements of the offense for which Sheppard is being prosecuted. The court therefore had the discretion to confine Sheppard to jail." 5 S.W.3d 338, at 340, Sheppard v. State, (Tex.App.-Texarkana 1999)

In 2005 the legislature also added other prior convictions that raise an assault against a family or household member or one with whom the defendant had a dating relationship to a 3 rd degree felony. Those prior convictions are: Chapter 19(murder), Section 20.03(kidnaping), Section 20.04(aggravated kidnaping), or 21.11(indecency with a child) or against a person whose relationship to or association with the defendant is described by Section 71.0021(b)[dating relationship], 71.003(family member), or 71.005(household member), Family Code.

DEFERRED ADJUDICATION

Effective September 1, 1999, provision (f) of Article 22.01 Penal Code allows a prior deferred adjudication, "whether or not the sentence was imposed" and a prior completed community supervision to be considered as a conviction. This includes pleas of guilty or nolo contendere in return for a grant of deferred adjudication. The statute specifically states that the change in the law applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose.

The application of the deferred adjudication judgment as a prior conviction for the purpose of elevating the offense to a third degree felony could violate the ex post facto provisions of the Texas and U.S. Constitutions. According to the generally accepted definition, a law is ex post facto if it changes the legal rules of evidence and requires less or different evidence to convict from the law in effect at the time of the offense. Lindsey v. State, 672 S.W.2d 892 (Tex.App.-Dallas 1984) affirmed 760 S.W.2d 649 (Tex. Crim. App. 1988).

The simplest case upon which to obtain a third degree felony assault conviction is where the deferred adjudication for family violence assault occurred after September 1, 1999.

On September 12, 2001, the Court of Criminal Appeals reviewed Article 12.42 of the Penal Code that was amended in 1997 to allow deferred adjudication to enhance a subsequent conviction for aggravated sexual assault to an automatic life sentence in prison. Scott v. State, 55 S.W.3d 593 (Tex.Cr. App. 2001). The defendant in Scott was sentenced to life based on deferred adjudication that had occurred prior to the enactment of Article 12.42. At the time of his deferred, Article 42.12 provided that a dismissal under this section shall not be deemed a conviction for the purposes of disqualifications or disabilities. The Court held that the Legislature recognized that "disqualifications or disabilities" covers enhancements when it amended the statute to except specifically the deferred adjudication enhancement it created in Article 12.42. Article 42.12 Sec. 5 (c) of the Code of Criminal Procedure now states:

Except as provided by Section 12.42(g), Penal Code, a

dismissal and discharge under this section may not be deemed a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense.

The Court notes that normally ex post facto prohibition contained in U.S. Constitution, Art. 1, Section 10, would not bar an enhanced penalty, however, because Article 42.12 specially limited the collateral consequences of deferred adjudication, the defendant is entitled to rely on that restriction. Therefore the Court held that the defendant could not be enhanced with a deferred adjudication that occurred prior to the change in the law Article 12.42(g) Penal Code and 42.12 Section 5 (c) of the Code of Criminal Procedure.

The Court of Criminal Appeals, with Judge Keller writing the majority decision, held that using a successfully completed deferred adjudication to enhance punishment for a later offense violated the prohibition against ex post facto laws. Scott v. State, 55 S.W.3d 593 (Tex.Cr.App. 2001).

Clearly this analysis will apply to a judgment of deferred adjudication that occurred prior to September 1, 1999, that is used for enhancement under the assault statute to raise the punishment to a third degree felony. Under Scott, no felony assault should be prosecuted unless the prior deferred adjudication occurred after September 1, 1999.

The other problem for the State is that Article 42.12 C.C.P. was specifically amended to except sexual assault cases listed in Article 12.42 of the Penal Code from the discharge provisions of deferred adjudication. No such provision exists for deferred adjudication on family violence assault cases. Judge Keller held in Scott that the punishment increase for sexual assault cases could only apply to individuals who received deferred adjudication after Article 42.12 C.C.P. was amended to specifically except Article 12.42 Penal Code offenses from the discharge provisions of deferred adjudication. A defendant who was discharged prior to the change in the law, would expect that the deferred adjudication could not be used against him as a conviction. To do so, violates ex post facto law. This language of the opinion is a problem for the State in using completed deferred adjudication to enhance an assault case because Article 42.12 C.C.P. makes no mention of family violence assault cases. The two statutes are in conflict when Article 42.12 C.C.P. states that a completed deferred adjudication will not be used as a conviction and then Article 22.01(f) Penal Code states that deferred adjudication is a conviction for enhancement purposes.

This discussion has been about deferred adjudication, but a completed probation, or community supervision, can have similar language in the discharge order under Article 42.12, Section 20, so that the defendant can argue that he had an expectation that the completed probation released him from all penalties and disabilities. Probation has been held to not be a final conviction for the purposes of enhancement. See Jordan v. State, 36 S.W.3d 871 (Tex.Cr.App. 2001). A prior probation case was held to not be a prior conviction for stalking in order to enhance a subsequent stalking case under 42.072 (b) of the Texas Penal Code. See State v. Newsom, 64 S.W.3d 478 (Tex. App.-El Paso 2001) based on Jordan v. State, 36 S.W.3d 871 (Tex. Cr. App. 2001).

The Court of Appeals in Beaumont has held that a prior successfully completed probation could be used for enhancement. Comeaux v. State 151 S.W.3d 710 (Tex. App.-Beaumont 2004) The Court found that there are two types of discharge under 42.12 Section 20 C.C.P. One is simply a release from probation, the other is a judicial clemency. Clemency occurs when the court exercises its discretion and sets aside the verdict or permits the defendant to withdraw a plea and dismisses the charging instrument resulting in a "release from all penalties and disabilities". The Defendant had not received such a discharge and therefore any restriction on collateral consequences only applied to those who do obtain such a discharge.

Deadly Weapon

Lane v. State, 151 S.W.3d 188 (Tex.Crim.App. 2004) held that hands and feet were deadly weapons in an assault family violence which could raise the charge to aggravated assault. He argued that all misdemeanors could be classified as felonies under this scenario. Regardless, the Court found under this factual circumstance, the injuries sustained were serious and created a substantial risk of death, and the hands and feet were deadly weapons. The Court noted in a footnote that almost anything can be a deadly weapon.

Affirmative Finding of Family Violence

Article 42.013 C.C.P. requires a finding of family violence be entered into the judgment of any case if the court determines that the offense involved family violence. This rule has been in effect since September 1, 1993. In State v. Eakins, 71 S.W.3d 443 (Tex.App.-Austin 2002), the trial court had granted a motion to suppress the evidence from the prior conviction because there was no affirmative finding of family violence in the judgment. The Third Court of Appeals reversed, holding that the affirmative finding is only one way to prove that the prior case involved family violence. The Court held that the State could introduce extrinsic evidence that the previous assault was committed against a family member. This evidence can be the testimony of the prior victim, testimony from a witness to the assault or the arresting police officer.

The Court of Criminal Appeals has refused to address the issue of an affirmative finding made in a misdemeanor assault case. The jury had been instructed to find the issue of family violence if it believed that the issue had been proven by a preponderance of the evidence. The Court found that since this was a misdemeanor, the issue was not ripe for decision. Word v. State, 206 S.W.3d 646 (Tex.Cr.App. 2006).

In Tanner v. State, 2011WL667883, decided February 24, 2011, the Amarillo Court of Appeals reversed a felony family violence conviction. The judgment of the prior conviction contained nothing about the assault having been upon or involving a family member. Plea documents were introduced that stated the defendant had been charged with Assault-BI-FM. No evidence was introduced to explain what that meant, and there was no named victim. The judgment did not contain the finding required by the Code. As a result, the Court of Appeals found that the initials FM failed to satisfy the State's burden of proof and reversed the felony conviction reforming the judgement to a misdemeanor and remanding for a new punishment hearing.

Proposed Jury Charge

The Family Violence Court in Travis County uses the following affirmative finding form charge in the Guilt/Innocence stage of the trial:

Do you find from the evidence beyond a reasonable doubt that on or about the __day of ____, 200_, the defendant, A.B., a member of a household or family, committed an act that was intended to result in physical harm, bodily injury, or assault or that is a threat that reasonably places the member of a family or

household in fear of imminent physical harm, bodily injury, or assault?

Answer yes or no_________

Presiding Juror

See Texas Practice Series Vol. 8 Criminal Forms and Trial Manual Section 100.13A McCormick and Blackwell.

Apprendi Issue

InApprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held that it denied the defendant due process of law under the 14 th Amendment to the U.S. Constitution for the Legislature to remove from the jury the assessment of facts that increase the range of penalties. The issue of whether or not a hate crime occurred must be submitted to the jury. In Ex parte Boyd, 58 S.W.3d 134 (Tex.Cr.App. 2001), the Court of Criminal Appeals followed Apprendi, granting relief where the trial court made the finding that enhanced the defendant's sentence. Thus it is clear that the enhancement by conviction must be presented to the jury for them to sentence the defendant to a 3 rd degree felony based on a prior conviction under Article 21.01, Penal Code.

Proportionality

Another possible objection to the enhancement provisions of Article 22.01, Penal Code, is the constitutional prohibition against disproportionate punishment under the 8 th Amendment of the U.S. Constitution. In Rodriquez v. State, 71 S.W.3d 778 (Tex.App.-Texarkana 2002), the defendant argued that his sentence was disproportionate to the offense. However, the objection was waived because it had not been made at the trial court level. See Solem v. Helm, 463 U.S. 277 (1983), and Harmelin v. Michigan, 501 U.S. 957 (1991), for the Supreme Court's requirements to show a disproportionate sentence. For a discussion of Texas appellate court decisions on disproportionality claims see Winchester v. State, 246 S.W.3d 386 (Tex. App. Amarillo 2008).

CHAPTER 5 OF THE CODE OF CRIMINAL PROCEDURE

Article 5.05 requires the officer who responds to a disturbance call that "may" involve family violence to make a written report. They are required to give written notice of the victim's legal rights. Under Article 5.06, the prosecuting attorney can not require proof that the complaining witness seek a dissolution of marriage or a suit affecting the parent-child relationship before proceeding on the prosecution of a criminal case. Article 5.08 prohibits mediation in a case involving family violence.

Effective September 1, 2007, Article 2.30 of the Code of Criminal Procedure was amended to state that the officer shall prepare a written report and that on request of the victim of the offense, the local law enforcement shall provide the victim, at no cost to the victim, with the information contained in the written report prepared that is not exempt from disclosure under Chapter 552, Government Code.

COLLATERAL CONSEQUENCES

Deportation

Any alien who is convicted at any time for a crime of domestic violence is deportable. Convictions include deferred adjudication. Any alien convicted of violating a protective order is deportable. In 1996, Congress changed the definition of "conviction" to include "if adjudication of guilt has been withheld where (i) the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed."

Federal Firearms Violations

18 U.S.C. 922 (g)(9) provides:

It shall be unlawful for any person who has been convicted in any court of a misdemeanor crime of domestic violence , to....possess..., any firearm or ammunition.

18 U.S.C. 921 (a) (33)(A) provides:

(a) As used in this chapter-

(33)(A) ... the term misdemeanor crime of domestic violence means an offense that-

(i) is a misdemeanor under Federal or State law; and

(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent or guardian of the victim.

(B)(i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless-

(I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and

(II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either

(aa) the case was tried by a jury or

(bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.

(ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

This does not include the conviction for reckless conduct or terroristic threat. See U.S. v. White, 258 F.3d 374 (5th Cir. 2001).

In U.S. v. Hagen, the defendant filed a motion to dismiss the indictment on the grounds that he was convicted of "assault of a family member" under Texas Penal Code Section 22.01(a)(1) and that does not qualify as a "misdemeanor crime of domestic violence". The trial court granted the dismissal and 5 th Circuit agreed. 349 Fed. Appx.896, 2009WL3294785 (C.A.5 (Tex.)) The Court relied upon U.S. v. Villegas-Hernandez, 468 F.3d 874 (5 th Cir. 2006). In Villegas-Hernandez, the Court held that the use of force is not an element in Section 22.01(a)(1) to establish assault, since the ability to cause bodily injury can occur without force, for example, by poisoning.

Article 42.0131 of the Code of Criminal Procedure requires a judicial admonition regarding firearms to a person convicted of a misdemeanor involving family violence. Most courts are not giving this admonition when the sentence is deferred adjudication and they do not consider it a conviction. However, beware of Ex parte Smith, 296 S.W.3d 78 (Tex. Crim. App. 2009) in which the Court states that whether the unlawful possession of firearm statute applies to a person who is or has been on deferred-adjudication supervision is not clear.

A felony deferred adjudication probably prohibits possession of a firearm as the person is still under indictment. See 18 USC 922 (n) which prohibits possession while under indictment for an offense punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. A completed felony deferred adjudication can probably possess a firearm under federal law, as 18 USC 921 (a)(20) states that whether it is a conviction is a matter of state law and a charge that has been expunged or set aside shall not be considered a conviction.
A sentence of community supervision, including a completed supervision, for a misdemeanor would probably prohibit the person from possessing a firearm under 18 USC 922 (g)(9) except for the application of U.S. v. Hagen. A current probation for a felony, including a completed felony probation, for family violence will prohibit possession of a firearm under 18 USC 922(g)(1) and 18 USC 921(a) (20). A final conviction for a misdemeanor family violence would probably prohibit possession under 18 USC 922(g)(9) except for the application of U.S. v. Hagen. A final felony conviction will prohibit possession under 18 USC 922(g)(1).

Protective Orders

18 U.S.C. 922 (g)(8) prohibits a person from possessing a firearm if they are subject to a court order that: (A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.

The Fifth Circuit has held that the 2 nd amendment right to bear arms can be subject to certain restrictions, including limiting the rights of anyone subject to a restraining order. See U.S. v. Emerson, 270 F.3d 203 (5th Cir. 2001)

It is clear that a person under a Chapter 85 Family Code Protective Order, issued after notice and hearing, can be prosecuted under 18 U.S.C.922 for a felony. An emergency protective order that was obtained without notice to the defendant would not qualify under federal law as a bar to possessing a firearm. However, see Texas state law 46.04(c)Texas Penal Code which does prohibit possession during an EPO.

State Law Prohibiting Firearm Possession

Article 46.04 of the Texas Penal Code: Unlawful Possession of Firearm

(b) A person who has been convicted of an offense under Section 22.01, punishable as a Class A misdemeanor and involving a member of a person's family or household, commits an offense if the person possesses a firearm before the fifth anniversary of the later of :

(1) the date of the person's release from confinement following conviction of the misdemeanor; or

(2) the date of the person's release from community supervision following conviction of the misdemeanor.

(C) A person, other than a peace officer, ... who is subject to an order issued under Article 17.292[emergency protective order] ..commits an offense if the person possesses a firearm after receiving notice of the order and before expiration of the order.

The order can be in effect for 61 days with no hearing to the defendant.

These sections are class A misdemeanor offenses under State law.

This state law does not prohibit possession while under indictment for a felony. It would not apply to one who is one deferred adjudication or who has completed deferred adjudication for a either a felony or misdemeanor family violence offense. However, beware of Ex parte Smith, 296 S.W.3d 78 (Tex. Crim. App. 2009) in which the Court (Womack, J.) says "Whether the Unlawful Possession of Firearm statute applies to a person who is, or has been, on deferred-adjudication community supervision is not clear".

For a person who is on regular probation for either the felony or misdemeanor offense, possession would be prohibited. Once probation or a jail sentence is completed, the person must wait 5 years from their release before possessing a firearm. A person convicted of a felony, including a completed felony probation, can not possess a firearm for 5 years after their release and may not possess a firearm at any location other than their home, 46.04(a).

Custody of Children

Section 153.004 of the Texas Family Code outlines some important consequences upon a finding of a "history of domestic violence" in a suit affecting the parent child relationship. The Family Code requires that the court consider evidence of abuse that occurs within two years of the filing and the court may not appoint joint managing conservators if credible evidence is presented of abuse. Section 153.004(c) makes it clear that the court must deny access to a child to a parent who has a history or pattern of committing family violence.

Spousal Maintenance

Section 8.051 of the Texas Family Code provides for spousal maintenance in the dissolution of a marriage that lasted more than 10 years. However, if a spouse was convicted of or received deferred adjudication for a criminal offense that constitutes an act of family violence, the person's spouse is eligible for maintenance regardless of the length of marriage. The amount is up to $2,500 dollars per month for three years. Pending 2011 legislation could change the statutory requirements and raise the amount to $5000.00 for five years. See section entitled 2011 Legislation.

EMERGENCY PROTECTIVE ORDERS

Under Article 17.292 of the Code of Criminal Procedure, Protective Orders can only be issued after the arrest for an offense involving family violence, or stalking. The magistrate may issue the order on their own motion or at the request of the victim, guardian of the victim, a peace officer or the attorney representing the state. The victim need not be present in court when the order is issued. Even if this order conflicts with existing court orders, the conditions imposed under this Article prevail. The order may suspend a license to carry a concealed handgun. Under Article 17.292 (b) the magistrate shall issue an emergency protection order if the arrest is for an offense that involves;

(1) serious bodily injury to the victim; or

(2) the use or exhibition of a deadly weapon during the commission of an assault.

Article 17.291 of the Code of Criminal Procedure allows for detention after bond has been posted in cases involving family violence.

EVIDENTIARY ISSUES

Excited Utterances

Prior to the Supreme Court decision of Crawford v. Washington in 2004, many family violence cases were tried with the use of hearsay statements made by alleged victims that failed to appear at the trial. Even after Crawford excited utterances are still a crucial piece of evidence in many family violence trials. Texas Rules of Evidence 803(2) allows this evidence as an exception to the hearsay rule if the statements related to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Under the Rules of Evidence the availability of the declarant is irrelevant. The foundation of the exception is that the statements are involuntary and do not allow the declarant an adequate opportunity to fabricate, thus ensuring their trustworthiness. Reyes v. State, 48 S.W.3d 917 (Tex.App.-Ft. Worth 2001), sets out the qualifications of an excited utterance as being:

1. The statement must be the product of a startling occurrence;

2. The declarant must have been dominated by the emotion, excitement, fear or pain of the occurrence; and

3. The statement must be related to the circumstances of the startling occurrence.

Other factors to consider are whether the statement was made in response to questions and how much time has elapsed between the startling event. The officer testified that the victim in Reyes was crying and upset and she had swelling and bruises on her face. The Court held that the statement "he hit me" was made while she was dominated by the emotion, pain and excitement resulting from the assault and her statement related to the startling occurrence.

The dissent in Reyes points out the problems with majority decision. The statement was made in response to the police question, "did he hit you?" Being "upset", the dissent says, is not the same as being in the grip of a violent emotion which would prevent the fabrication of a falsehood. In addition, the dissent objects to the admission of the statement because to be a spontaneous reaction to an exciting event, there must be independent proof of the occurrence to which the statements relate; the statements themselves cannot be used to prove the exciting event. Civil cases have long required such a showing. The dissent would hold that the statement was not spontaneous since the emotion was insufficient, there was no evidence of an exciting event, and no evidence of when an event occurred.

Aguilera v. State, 75 S.W.3d 60 (Tex.App.-San Antonio 2002), held that statements made one year after the date of the event, were not excited utterances and the trial court erred in admitting the statements. Statements made by a child two days after returning to the home of her mother, were not excited utterances because there was no showing that she was still in the grip of a violent emotion. Martinez v. State, 178 S.W.3d 806 (Tex. Crim. App. 2005)

The Court of Criminal Appeals in, Zuliani v. State, 97 S.W.3d 589 (Tex.Crim.App. 2003), held her statement 20 hours after the altercation made in response to questioning, was in fact, an excited utterance. The key for the Court was "whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event". The time period separating the event and the statement, and whether the statement was in response to question, are simply factors to be considered. In this case, the trial court did not abuse its discretion in admitting the statement. There was no 6 th amendment issue because the declarant testified at trial.

The Court of Criminal Appeals in Apolinar v. State, 155 S.W.3d 184 (Tex.Crim.App. 2005), held that the admission of a statement four days after the startling event wasstill an excited utterance. Here the victim was in the hospital, heavily medicated, and when he awoke he told his daughter what had happened. The court held under the unusual circumstances of this case, he had not had an opportunity to reflect or fabricate.

In Hughes v. State, 128 S.W.3d 247 (Tex.App.-Tyler 2003) (petition ref'd), the court reversed the case on the improper admission of victim statements under the excited utterance exception. The victim had given a detailed history of sexual abuse by her father, the defendant, which was obtained by protracted interrogation. It was not possible to conclude that the statements were made without the opportunity for reflection.

6 th Amendment Violation

In 2004 the Supreme Court overruled Ohio v. Roberts issuing the most important evidentiary development in family violence cases in Crawford v. Washington, 124 S.Ct. 1354, 541 U.S. 36 (2004). The 803 hearsay exception was not sufficient for admissibility. If the declarant does not testify, the defendant's right of confrontation has been violated.

Old Rule: In order to be admissible the state previously had to meet the two part test set out in Ohio v. Roberts, 100 S. Ct. 2531 (1980). First, the evidence must be reliable and secondly, the State must show necessity. The hearsay exception only meets the reliability half of the test. The State could then meet the necessity requirement by proof that the declarant is unavailable. If the evidence did not fall within a "firmly rooted" hearsay exception, then Smith v. State, 61 S.W.3d 409 (Tex.Cr.App. 2001) required a showing of particularized guarantee of trustworthiness in order not to violate the 6 th amendment. However Crawford changed those rules.

New Rule: The Supreme court held that if a statement is "testimonial" it can only be admitted if the declarant is unavailable and the defendant has had a prior opportunity to cross examine the witness. The court set out a limited number of examples of what constitutes "testimonial" evidence. Prior testimony at a preliminary hearing, or at a grand jury or former trial and "police investigations" were recognized by the Court as constituting a statement that is testimonial.

In Crawford the State used the declaration against interest hearsay exception to admit Crawford's wife's statement to police against him in his trial for murder. She had made the statement at the station house while being considered a possible suspect herself. She then became unavailable due to the spousal privilege. The Court reversed the conviction based upon the admission of her statement in violation of Mr. Crawford's 6 th amendment right to confrontation.

What is testimonial?

For the next two years the state courts struggled to define what the Supreme Court meant by testimonial. Wilson v. State, 151 S.W.3d 694(Tex.App.-Ft. Worth 2004), held that the girlfriend's statement to police when she was inquiring about her car, which the defendant has just wrecked, were excited utterances, nontestimonial and therefore admissible.

Wall v. State, 184 S.W.3d 730(Tex.Crim.App. 2006), affirmed the lower court finding that statements made by a homeless man in the emergency room to a deputy about his injuries were testimonial. The statements had been admitted when the man did not testify in the defendant's aggravated assault trial. The trial court had admitted the statements as excited utterances. But the Court of Appeals and the Court of Criminal Appeals both agreed that the statements were "testimonial" and violated the defendant's right to confrontation underCrawford v. Washington. The statements were testimonial because a reasonable person would have appreciated the fact that the officers were conducting a criminal investigation and collecting evidence for a prospective prosecution. The court found that the error did not contribute to the conviction, but reversed the case for the lower court to determine if the error impacted the punishment stage of the trial.

Kearney v. State, 181 S.W.3d 438 (Tex.App.-Waco 2005), held that the tape recording of a 911 call to police was not "testimonial" and did not violate Crawford. InDavis v. State, 169 S.W.3d 660 (Tex.App.-Austin 2005) the 3 rd Court of Appeals held that if the person obtaining the statement is a governmental employee or police officer carrying out an investigation or prosecutional function, the statement is "testimonial". But the question remained whether that was required to be testimonial. The error was found harmless when the defendant testified, corroborating much of the out of court statements and the Court of Criminal Appeals agreed. 203 S.W.3d 845 (Tex. Crim. App. 2006).

On June 19 th , 2006 the Supreme Court gave the lower courts guidance on this very difficult issue. Davis v. Washington, 126 S.Ct. 2266 (2006) was actually two cases decided together that illuminate what is testimonial and therefore in violation of the Sixth Amendment right of confrontation and cross examination of the witness in a criminal trial. The Davis case involved the admission of the 911 tape recording. Ms. McCottry called the police to report that she was being assaulted by her boyfriend, Mr. Davis. She did not testify at his trial but the court admitted the 911 recording over the defendant's Sixth Amendment objection. The Supreme Court held that the 911 tape recording was not "testimonial". The caller was describing events as they were actually happening and she was facing an ongoing emergency. The court held that the primary purpose of her call was to enable police assistance to meet her ongoing emergency. The Court held that statements were nontestimonial 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 Court noted in Davis that emergency assistance calls can evolve into testimonial statements once the purpose of the call has been achieved. The Supreme Court instructed trial courts that they should redact or exclude the portions of any statement that have become testimonial. Since the jury in Davis did not hear the complete 911, call the Supreme Court stated that they were only deciding whether the early statements identifying Davis as her assailant were testimonial and they held that they are not.

The second case decided and cited in Davis v. Washington, is Hammon v. Indiana. In Hammon the police responded to a domestic disturbance. Upon arriving, the police noted that Ms. Hammon was alone on the front porch, appearing somewhat frightened. She first told them that nothing was the matter. Later during the investigation, she signed an affidavit and told the officers that her husband shoved her to the floor, hit her in the chest and threw her down. Though subpoenaed, she failed to appear at trial and the affidavit and police testimony was admitted over the defendant's Sixth Amendment objections as excited utterances. The testifying officer acknowledged that there was no emergency in progress and no immediate threat to Ms. Hammon. The officer's interrogation was part of an investigation into possible criminal past conduct. The fact that the statement was given at the crime scene is immaterial. The purpose of the questioning in another room was to investigate a possible crime. Such statements under official interrogation are an obvious substitute for live testimony as they do precisely what a witness does on direct examination, and therefore they are inherently testimonial.

Some cases interpreting Crawford and Davis have held that statements are only testimonial if they are made to police officers. "Testimonial" has been defined in the Texas courts as structured questions in an investigative environment or courtroom where the declarant reasonably believes the responses might be used in the future. Gongora v. State, 214 S.W.3d 58 (Tex.App.-Ft. Worth 2006) and Walter v. State, 209 S.W.3d 722 (Tex.App.-Texarkana 2006) reversed for admitting entire co-conspirator's statement 267 S.W.3d 883 (Tex. Crim. App. 2008).

Accomplice out of court confessions have been found to be testimonial and the introduction of the confession was not harmless. Rubio v. State, 241 S.W.3d 1 (Tex. Crim. App. 2007). Confidential police informant's out of court statements were testimonial and violated the defendant's right to confrontation. Langham v. State, 305 S.W.3d 568 (Tex. Crim. App. 2010)

CPS report containing a collateral source's allegations were testimonial and violated Crawford and admission as a business record exception was error but harmless. Wells v. State, 241 S.W.3 172 (Tex. App. Eastland 2007).

Excited utterance to police officer was testimonial and Crawford error, however it was harmless because the defendant testified. Majority notes that the defendant did not object to having to testify. Davis v. State, 203 S.W.3d 845 (Tex. Crim. App. 2006).

In Mason v. State, 225 S.W.3d 902 (Tex. App. Dallas 2007), an extremely upset and visibly injured woman answered the door. She stated that her boyfriend had threatened to kill her and he was inside the apartment. The Court of Appeals initially held the introduction of these statements when the complainant did not testify violated Crawford. The U.S. Supreme Court remanded the case in light of Davis, Texas v. Mason, 127 S.Ct. 68 (2006). On remand the Court of Appeals held that the facts in this case were much closer to the facts inHammon in that Davis involved a 911 call made during an ongoing emergency. The Court held that the statements were testimonial because the police were investigating what had happened before they arrived. There was no immediate emergency in progress.

The case was reversed and PDR was denied.

In Vinson v. State, 252 S.W.3d 336 (Tex. Crim. App. 2008) a 911 hangup call was made. Upon arrival the girlfriend identified Vincent as her attacker before he was placed in the patrol. After he was secured in the car, she described the assault in detail to the police. All statements were admitted when she failed to appear for trial. The Court of Criminal Appeals held that the identification was not testimonial because there was an ongoing emergency until the defendant had been secured in the police car. However, the statements made describing the assault were obtained when no emergency exited because the defendant had been removed and the police were interviewing the witness. The case was reversed for theCrawford violation. On remand the Court of Appeals found harmful error, 266 S.W.65 (Tex. App. Hous. 1 st 2008).

Rodriguez v. State, 274 S.W.3d 760 (Tex. App.-San Antonio 2008) held that the identification of the victim's "boyfriend" and the description that she had escaped from the house were admissible because of the on going emergency, but statements after the detention of the defendant were inadmissible though error was harmless.

In Zapata v. State, 232 S.W.3d 254 (Tex. App.-Houston [1 st Dist.]2007) the complainant had left the home, called 911, and then returned to wait outside the house while the defendant remained inside the house. The Court held that the responses of the complainant to the police questioning were testimonial because there was no argument or confrontation occurring when the officers arrived. The officer testified that she was interrogating the complainant, who was in an emotional state, to gather evidence about past events and that the complainant was not describing any ongoing emergency.

Santacruz v. State, 237 S.W.3d 822 (Tex. App.-Houston [14 th Dist.] 2007), involved a 911 recording about 10-15 minutes after the alleged assault. The complainant was bleeding and requesting an ambulance. She had fled to her mother's house and was afraid that the defendant would follow her. Even though she was at times describing past events, the Court held that the 911 call was not testimonial because the primary purpose of the interrogation was to enable police assistance in an ongoing emergency.

On February 28, 2011, the Supreme Court clarified what Davis meant by "the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency" in Michigan v. Bryant, 131 S.Ct. 1143 (2011). The victim stated to police that Bryant shot him and then the victim died. Michigan Supreme court held that the statement was testimonial as the primary purpose was to prove past events and not to meet an ongoing emergency. The Supreme Court reversed saying that since this is a non-domestic dispute, the ongoing emergency continues because of the potential threat to police and the public. Thus the statements were not testimonial hearsay and the Confrontation Clause did not bar their admission.

The Supreme Court recognized that when defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce. The rule of forfeiture by wrongdoing extinguishes confrontation claims. Under the Federal Rules of Evidence, the standard is proof by a preponderance of the evidence standard. The Supreme Court held that absent a finding of forfeiture by wrongdoing, the Sixth Amendment operates to exclude Ms. Hammon's affidavit. In Sohail v. State, 264 S.W.3d 251 (Tex. App.-Houston [1 st Dist.]2008) the wife refused to testify and was found in contempt. The court then made a determination that her refusal to testify was due to the defendant's wrongdoing and allowed the admission of out of court statements made by the wife. Numerous witnesses testified that the victim told them that the defendant had repeatedly assaulted her because she was unable to get the charges dismissed.

The Court of Criminal Appeals held that murdering the victim forfeits the defendant's 6 th amendment claim that admission of the victim's statements to police violated his right to confront the witness. Gonzales v. State, 195 S.W.3d 114 (Tex. Crim. App. 2006). However, the Supreme Court in Giles v. California, 128 S.Ct. 2678 (2008) held that the scope of the forfeiture rule applies only when the defendant engaged in conduct designed to prevent the witness from testifying. Mr. Giles was accused of shooting and killing his ex-girlfriend. Prosecutors introduced out of court statements the deceased had made to the police about 3 weeks before the shooting alleging that the defendant had assaulted her and threatened to kill her.

The trial court admitted the statements because they concluded that he had committed the murder for which he was on trial and therefore he had made the witness unavailable to testify. The Supreme Court held, "The notion that judges may strip the defendant of a right that the Constitution deems essential to a fair trial, on the basis of a prior judicial assessment that the defendant is guilty as charged, does not sit well with the right to trial by jury. It is akin, one might say, to "dispensing with jury trial because a defendant is obviously guilty."



The Court noted that common law uniformly excluded unconfronted inculpatory testimony by murder victims (except dying declarations) in the numerous cases in which the defendant was on trial for killing the victim, but was not shown to have done so for the purpose of preventing testimony.

The Court also stated that in family violence cases "where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution-rendering her prior statements admissible under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify." The Supreme Court reversed the case for admitting the deceased statements. On remand Supreme Court stated the lower court would be allowed to consider the intent of the defendant, something they had not done believing it was irrelevant to the issue of forfeiture.

Inconsistent Hearsay

If the State does introduce hearsay statements of a victim, then under Rule 806, the defendant is allowed to introduce other inconsistent hearsay statements to impeach the declarant. See Marcel v. State, 64 S.W.3d 677 (Tex. App.-Hous [1 Dist.] 2001). See also Sohail v. State, 264 S.W3d 251 (Tex. App.-Houston [1 st Dist.]2008) which held it was error to refuse to allow the complainant's sister to testify that she was told the injuries were an accident. However, the court held the error was harmless.

Another method for introduction of victim statements was to assert that the victim is a "party" under 801(e)(2). Willover v. State, 38 S.W.3d 672 (Tex. App.-Hous [1 Dist.] 2000), initially answered that they were. However, Willover was overruled by Davis v. State, 177 S.W.3d 355 (Tex.App.-Hous [1 st Dist.] 2005). The court followed Logan v. State, 71 S.W.3d 865 (Tex.App.-Ft. Worth 2002), which held that the State, not the victim, was the party opponent. In that case the victim in an alleged family violence assault did not testify and the police officer testified as to hearsay statements that the victim made at the scene. A written victim statement form was introduced into evidence. The defendant had an affidavit of non-prosecution signed by the victim. The trial court refused to admit it and the Court of Appeals affirmed. However, Logan is a pre-Crawford case.

Marital Privilege

Rule 504(b) states that in a criminal case, the spouse of the accused has a privilege not to be called as a witness by the State. The exception is in any proceeding in which the person is charged with a crime against the person's spouse, a member of the household of either spouse, or any minor. This allows the State to force spousal victims to testify even against their wishes. However, in violation of protective orders, the spouse may not be victim of the crime. So a common law marriage might prevent the State from calling a spouse to testify about a violation of a protective order. Evidence of a common law marriage may be by a signed declaration of marriage or evidence that a man and woman agreed to be married and were living together while representing themselves as married to others. See 2.401 (a)(1)(2) of the Texas Family Code.

Due Process to Present a Defense

In Alonzo v. State, 67 S.W.3d 346 (Tex.App.-Waco 2001), a murder defendant wanted to introduce a videotape of an eyewitness who identified another as the murderer. The witness was subsequently charged with false report to a police officer and refused to testify. The trial court refused to allow the introduction of the statement. Due process requires that the defendant be allowed to present his defense so that the appellate court found error in denying the introduction of the tape when there was no issue of the trustworthiness and the State had ample opportunity to examine the witness extensively prior to trial.

Holmes v. South Carolina, 126 S.Ct. 1727, 547 U.S. 319 (2006), struck down a state evidentiary rule that prohibited introduction of a third party's guilt. The Supreme Court recognized that the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense under the Due Process Clause of the 14 th Amendment and the compulsory process or confrontation clause of the 6 th Amendment.

Expert Testimony

Experts are not permitted under Rule 702 of the Rules of Evidence to give an opinion that a complainant or a class of persons to which the complainant belongs is truthful. See Aguilera v. State, 75 S.W.3d 60 (Tex.App.-San Antonio 2002), relying on Yount, 872 S.W.2d 706 (Tex.Cr.App. 1993). See also, Gonzalez v. State, 301 S.W.3d 393 (Tex. App. El Paso 2009). Lay witnesses are also prohibited from giving their opinion about whether the complainant is telling the truth. In Arzaga v. State, the officer testified that he believed the complainant. 86 S.W.3d 767 (Tex. App.-El Paso 2002). The Court noted that it is generally improper for a witness to offer a direct opinion as to the truthfulness of another witness. See Schutz v. State, 957 S.W.2d 52, 59 (Tex.Crim.App. 1997); Yount v. State, 872 S.W.2d 706, 710-11 (Tex.Crim.App.1993) (opinion on reh'g). "This type of testimony is inadmissible because it does more than assist the trier of fact to understand the evidence or to determine a fact in issue; it impermissibly decides an issue for the jury. In other words, it is not helpful to the jury, and consequently, is inadmissible under TEX.R.EVID. 702. Although this issue generally arises in the context of expert witnesses, lay opinions must also be helpful to a clear understanding of the witness's testimony or the determination of a fact in issue. See TEX.R.EVID. 701. It follows, then, that a lay witness is not permitted to offer an opinion that another witness is truthful. Because the officer's testimony had no purpose other than to show that the State's witnesses were telling the truth, the trial court erred in admitting it." The defense attorney preserved error by objecting that this evidence was improper bolstering, but such error was harmless. 86 S.W.3d at 776 Arzaga v. State, (Tex.App.-El Paso 2002)

Medical Testimony

803(4) of the Texas Rules of Evidence holds that statements made for purposes of medical diagnosis or treatment... in so far as reasonably pertinent to diagnosis or treatment are not excluded by the hearsay rule. Reyes v. State, 48 S.W.3d 917 (Tex.App.-Ft. Worth 2001), held the statement "says husband assaulted her with fists" contained in the medical records was not inadmissible hearsay. The dissent points out that there was no showing that the statement was for the purposes of treatment, in fact, the patient did not want medical treatment. Quoting Skillern & Son, Inc., v. Rosen, 359 S.W.2d 298 (Tex. 1962), a Supreme Court of Texas case, the dissent says that statements about how an accident happened are not particularly trustworthy just because they are contained in a medical record.

In Garcia v. State, 126 S.W.3d 921 (Tex. Crim. App. 2004) the Court held that statements to shelter workers were not admissible under 803(4) of the Rules of Evidence since there was no showing that the declarant went to the shelter to seek medical treatment nor that the shelter provided any medical diagnosis or treatment.

In De la Paz v. State, 273 S.W.3d 671 (Tex. Crim. App. 2008) medical records were introduced that contained hand written notes detailing statements by the complainant as to how the defendant had injured her. The Defendant argued that such notes violated Crawford and his 6 th amendment confrontation right. The Court of Criminal Appeals held that once the defendant objected, the state had the burden of proving that the records were either non-testimonial, or that if they were testimonial that they were still admissible underCrawford. Noting that the Supreme Court has not resolved the issue of whether a statement can be testimonial if made to a non-government employee, the court nevertheless reversed and remanded to the court of appeals for a harm analysis. The Court stated in a footnote that they are not stating that the notes are testimonial only that the state failed to prove they were admissible under Crawford.

BEWARE: Lane v. State, 151 S.W.3d 188 (Tex.Crim.App. 2004), which held that the error in admitting excited utterances was waived when no objection was made to the same evidence contained in the medical records. Any error in admission of evidence is cured when the same evidence comes in elsewhere without objection.

38.26 Code of Criminal Procedure

In murder cases, this Code provision allows the State or the defendant to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased. The Court of Criminal Appeals has held that this provision allows evidence of bad acts under 404(b) of the Rules of Evidence that would normally not be admissible.

In Garcia v. State, the defendant was charged with murdering his wife. The trial court allowed in evidence that he had previously thrown her out of a car. The Court of Appeals reversed saying it was immaterial to the murder and a violation of 403. The Court of Criminal Appeals held that it was admissible under 38.26 C.C.P. 201 S.W.3d 695 (Tex.Cr.App. 2006).

VIOLATIONS OF PROTECTIVE ORDERS

It is not necessary that the underlying protective order be specific enough to support a judgment of contempt; it is only necessary that it be specific enough to meet the normal requirements of specificity that attach to allegations of culpable conduct. See Lee v. State, 799 S.W.2d 750, 752-54 (Tex.Cr.App. 1990). "The informations in these cases and the protective orders both track the statutory language of the Penal Code Section prohibiting the criminal conduct of going at or near the named location. Ordinarily, a charging instrument is sufficient if it tracks the statutory language of the law prohibiting the conduct alleged." See Collins v. State, 955 S.W.2d 464, 467 (Tex.App.-Fort Worth 1997); Bollman v. State, 629 S.W.2d 54, 55 (Tex.Cr.App. 1982); Ames v. State, 499 S.W.2d 110, 114 (Tex.Cr.App. 1973).

The State properly pled the essential elements, but it also unnecessarily included the date of the order's issuance. Once the State pled the year of the original protective order, 1993, the State was bound to prove a violation of a 1993 protective order. Rohrscheib v. State, 934 S.W.2d 909, 911 (Tex.App.-Houston [1 Dist.] 1996). A copy of the 1995 protective order was introduced into evidence as State's exhibit 1, and there was testimony regarding the 1995 protective order. No proof was presented, however, as to the 1993 order that was pled in the information. Additionally, in contrast to the State's contentions, protective orders are not renewed or continued. " In conclusion, we hold appellant did not commit the crime alleged by the State as a matter of law. As previously stated, protective orders are valid for a time period not to exceed one year. TEX. FAM.CODE ANN. § 71.13(a) (Vernon 1996). By its very nature, a protective order automatically expires one year after its issuance. As the State erroneously pled in the information, on July 26, 1995, it was legally impossible for appellant to violate a protective order issued in 1993." -excerpt from Rohrscheib v. State, 934 S.W.2d 909 (Tex.App.-Houston [1 Dist.] 1996).

The defendant must have notice of the protective order. In Small v. State, 809 S.W.2d 253 (Tex.App.--San Antonio 1991 pet. ref'd), the appellant appealed his conviction for violating a protective order, alleging that there was no evidence that he actually knew of the court order and that he therefore could not violate an order he knew nothing about. Id. at 254. The court held that it was an essential element of the offense that the State prove the appellant knowingly and intentionally violated the court order in question beyond a reasonable doubt. The court found that "[u]nless a defendant is somehow aware of what he is prohibited from doing by a specific court order, he cannot be guilty of knowingly and intentionally violating that court order." Id. at 256. Further, in reversing the conviction, the court in Small noted that "aside from indicating that the appellant was served with notice of the hearing on the protective order, there [was] no evidence in [that] record that the appellant agreed to a protective order, attended any hearing or in any way participated, that he was ever served with a copy of the protective order, or that he in any way received notice, formal or informal, of the issuance or existence of the court order in question prior to" his violating it. Id. at 256-57.

In Ramos v. State, 923 S.W.2d 196 (Tex.App.-Austin 1996), the conviction for violating the protective order was affirmed even though there was no proof of actual service of the protective order on the defendant. In that particular case, the defendant had previously pled guilty to violating the same order prior to committing the offense which was the basis of his appeal. The State did not have to prove that he had actually received a copy of the protective order, only that he knew of the existence of the order before he violated it.

In Harvey v. State, the Defendant was convicted of violating a family protective order. The Court of Appeals found the indictment alleged that defendant acted intentionally and knowingly but not that he knew or intended to violate a protective order. The Court of Appeals reversed the conviction saying that the indictment and subsequent jury charge omitted the element that the Defendant knowingly and intentionally violated the protective order. Harvey v. State, 48 S.W.3d 847 (Tex.App.-Austin 2001).

The Court of Criminal Appeals reversed that holding in Harvey v. State, 78 S.W.3d 368 (Tex.Cr.App. 2002). The Court concluded that the charge was sufficient when it stated " a person commits the offense of violation of a protective order if, in violation of a protective order issued after notice and hearing, the person knowingly or intentionally commits family violence." The Court put a lot of emphasis on the fact that the defendant did not object to the charge or request a different charge The Court held that the defendant must know of the existence of the order but need not know all of its provisions. See also, Villarreal v. State, 286 S.W.3d 321 (Tex. Crim. App. 2009)

FORGETFUL STATE'S WITNESS

"In this case, we find that the trial court erred in allowing Stern to testify in front of the jury. When Stern responded I don't remember to every substantive question asked on voir dire, the State was put on notice that his trial testimony would likely be the same. It is well-settled that a party may not call a witness primarily for the purpose of impeaching the proposed witness with evidence that would otherwise be inadmissible." See Barley v. State, 906 S.W.2d 27, 37 n. 11 (Tex.Cr.App. 1995), cert. denied, 516 U.S. 1176, 116 S.Ct. 1271, 134 L.Ed.2d 217 (1996); Pruitt v. State, 770 S.W.2d 909, 910-11 (Tex.App.-Fort Worth 1989)(pet. ref'd)." "We find, therefore, that it was improper for the State to call Stern as a witness knowing that he would feign a memory loss only to introduce facts into evidence by asking leading questions." These excerpts are from Armstead v. State, 977 S.W.2d 791 (Tex.App.-Fort Worth 1998).

In Sills, the State called a witness named Chambers who testified to his name and that he was residing in jail on charges not related to this case. He refused to answer any other questions. The prosecutor informed the court that Chambers refused to testify because someone had threatened him.

The prosecutor then questioned Chambers in front of the jury by reading each sentence from the written statement. The prosecutor prefaced the reading of each sentence by asking Chambers "isn't it true you told police," "isn't it true your statement reads," or "isn't it true you further stated." He refused to agree or disagree with any of the statements. Sills v. State, 846 S.W.2d 392, 395-396 (Tex.App.-Hous. [14 Dist.] 1992).

The Court of Appeals reversed Sills's conviction, holding that the witness's prior statement to police was not admissible to impeach the witness after the witness refused to testify at trial; the witness was not subject to hatred, ridicule, or disgrace at time of making the prior statement to police so that the statement was not admissible as a statement against interest; and that the admission of witness' prior statement to police to impeach the witness constituted reversible error. Sills v. State, 846 S.W.2d 392 (Tex.App.-Hous. [14 Dist.] 1992) (petition ref'd).

In Gannaway v. State, the trial court allowed the State to introduce Rice's statement implicating appellant in the murder although Rice did not say the statement was wholly true, did not fully testify, and was not fully cross-examined about the statement. Finding error the court stated "admitting Rice's statement was a back-door way for the State to get facts into evidence which Rice refused to testify about at trial. We cannot find beyond a reasonable doubt that appellant was not harmed." Gannaway v. State, 823 S.W.2d 675, 678 (Tex.App.-Dallas 1991).

These cases are based on an old Court of Criminal Appeals case, Wall v. State, 417 S.W.2d 59 (Tex.Cr.App. 1967), which held that if the only evidence of guilt is objected to hearsay impeachment of the complaining witness who is denying a crime occurred, the evidence is insufficient. In Wall, a daughter was tape recorded saying her father raped her, she later changed her story to say she didn't know who raped her. The tape recording and the impeachment of her was the only evidence that the father had committed a crime. The Court reversed and rendered an acquittal.

Texas Rule of Evidence 607 allows a party to attack the credibility of its own witness. However, such attack can be limited. A party can not call a witness primarily for the purpose of impeaching the witness with otherwise inadmissible hearsay testimony. Zule v. State, 802 S.W.2d 28 (Tex. App.-Corpus Christi 1990, pet. ref'd) and Pruitt v. State, 770 S.W.2d 909 (Tex. App.-Ft. Worth 1989, pet. ref'd). In White v. State, 201 S.W.3d 233 (Tex. App.-Ft. Worth 2006) the State called the officer to the stand first to testify to excited utterances made at the scene of the alleged assault by the complainant. Then they called the complainant who testified inconsistently with the officer's testimony.

The Court of Appeals in White held that it was proper to call the victim even knowing that she was going to deny her statements to the police. The statements to the police were admissible as excited utterances and the court notes in a footnote that the defendant did not allege that the statements were inadmissible under Crawford. The court found that the State had not called the victim for the sole purpose of impeaching her because she did corroborate parts of the officer's testimony and she confirmed that she had made the 911 call. White v. State, 201 S.W.3d 233 (Tex.App.-Ft. Worth 2006).

DEFENSIVE ISSUES

Who Is The Aggressor

Many issues in family violence cases are the same as those in any other assault or murder case. The violent character of the victim is admissible under 404(a)(2) of the Rules of Evidence to establish that the victim was the first aggressor. Extraneous acts of the victim for violence may also go to show the state of mind of the defendant under Rule 404 (b). Mozon v. State, 991 S.W.2d 841 (Tex.Cr.App. 1999).

In a murder case, the Court of Criminal Appeals held that when the defendant raises self defense, he may introduce evidence of the deceased's violence character. Rule 404(a)(2). "The defendant may offer opinion or reputation testimony to prove the deceased acted in conformity with his violence nature, 404(a)(2) and 405(a). Specific, violent acts of misconduct may be admitted to show the reasonableness of the defendant's fear of danger or to show the deceased was the first aggressor." These do not have to be violent acts against the defendant in order to be admissible. The Court of Criminal Appeals reversed the lower court's holding that this evidence was only "character conformity" evidence and therefore inadmissible. Torres v. State, 71 S.W.3d 758 (Tex.Cr.App. 2002). On remand the Court of Appeals again affirmed the conviction so the Court of Criminal Appeals granted a second petition for discretionary review. On the second PDR the Court again stated that the character evidence of the deceased, which involved specific acts of violence toward others, was admissible to show who was the aggressor in a self defense case. Torres v. State, 117 S.W.3d 891 (Tex.Cr.App. 2003). On remand the Court of Appeals ordered a new trial.

Criminal Record of the victim

In Arroyo v. State, 117 S.W.3d 795 (Tex.Cr.App. 2003), the Court of Criminal Appeals reviewed a misdemeanor conviction for assault. In that case, the victim did not testify. The defendant wished to impeach her credibility with certified copies of judgments of convictions in several criminal cases. The Court notes in a footnote that Rule 806 and 609 of the Rules of Evidence would allow the introduction of this evidence. However, the State successfully argued that the defendant could not show that this was the same person alleged as the victim and the trial court refused to allow the introduction of the evidence. The Court of Criminal Appeals reversed this holding. The State had previously provided the defendant with the victim's rap sheet pursuant to the defendant's Brady motion. The State was now estopped from asserting that the exhibits were inadmissible on the ground of identity. The case was remanded to the Court of Appeals to see if there was any other legal theory to exclude the documents. The Court of Appeals held that the judge had not abused his discretion in refusing to admit the documents and that if it was error the error was harmless. Arroyo v. State, 123 S.W.3d 517 (Tex.App.- SA 2004)(pet. ref'd).

Bias and Motive of the Witness

The defendant is entitled to attack the motive that a witness may have for testifying. The exposure of a witness's motivation in testifying is a proper and important function of the right of cross-examination. Specific acts may be admissible in spite of the Rules of Evidence if they are necessary to show the bias or motive for the witness to testify untruthfully. Thomas v. State, 897 S.W.2d 539 (Tex.App-Ft. Worth 1995). In Thomas, the defendant, charged with sexual assault, wanted to bolster his consent defense by showing that the victim's boyfriend was violent and jealous and that she would lie to avoid him finding out that she had consented to sex with the defendant. The Court of Appeals reversed the trial court decision to exclude this evidence.

Though Rule 608(b) prohibits impeachment with specific instances of conduct, the Confrontation Clause of the 6 th Amendment may require admission of evidence that the Rule would otherwise bar. In Billodeau v. State, 277 S.W.3d 34 (Tex. Crim. App. 2009) the complainant, when angry with his neighbors, had threatened to make false accusations of molestation against them. This occurred after the alleged molestation by the defendant. The Court of Criminal Appeals held that "the possible animus, motive or ill will of a prosecution witness who testifies against the defendant is never a collateral or irrelevant inquiry and the defendant is entitled to show any relevant fact that might tend to establish ill feeling, bias, motive, interest, or animus on the part of any testifying witness". The Court went on to hold that it was immaterial whether the alleged false threats occurred before or after the complainant accused the defendant. The case was reversed because the trial court denied the defendant to cross examine the complainant about the threat and prevented the defendant from presenting admissible evidence to show a possible motive for accusing the defendant.

Hammer v. State, 296 S.W.3d 555 (Tex. Crim. App. 2009) found error when the court refused to allow the defendant to cross examine the complainant about prior false accusations of sexual assault. The defendant was the complainant's father and he wanted to show that she was angry because he was strict. The false accusation explained why she might be motivated to falsely accuse the defendant of the very same conduct that she had accused her uncle of doing when she was 13. She had also accused all of her mother's boyfriends of abusing her. She had accused five men of raping her when in fact she had simply run away from home. The court held "this was one more episode that made all of her allegations of sexual misconduct somewhat less likely under the doctrine of chances. The case was remanded to the court of appeals for a harm analysis". Rule 403 of the Rules of Evidence's prohibition of probative evidence when it is too prejudicial should be used sparingly in "he said/she said" cases where the case must be solely resolved based on the testimony of the defendant and the complainant.

Consent or Mutual Combat

Section 22.06 of the Penal Code lists consent as a defense to assault, aggravated assault, or deadly conduct, if the actor reasonably believed the victim consented and the conduct did not threaten or inflict serious bodily injury. In Allen v. State, the trial court instructed the jury on this defensive issue because the evidence showed the victim had asked the defendant to slap her. The instruction failed to state the burden of proof. §2.03(d) of the Penal Code provides that, "if the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted." The 1st Court of Appeals reversed the conviction for failure to charge on the proper burden of proof on consent. 263 S.W.3d 168 (Tex.App.-Houston [1 Dist.] 2007). The Court of Criminal Appeals reversed stating that the unobjected to jury charge did not cause the defendant egregious harm. Allen v. State, 253 S.W.3d 260 (Tex. Crim. App. 2008)

It is error to fail to charge on the defense of consent if it is raised by the evidence. Bufkin v. State, 207 S.W.3d 779 (Tex.Crim. App. 2006)

Evidence of the Defendant's Good Character

The defendant has the right to introduce evidence of his good character at the guilt/innocence stage of the trial. Failure to allow such evidence has been held to be reversible error. Green v. State, 700 S.W.2d 760 (Tex.App.-Houston [14 Dist.] 1985) affirmed 727 S.W.2d 272 (Tex. Crim. App. 1987)

Self Defense

Self defense is involved in many family violence cases. In 2007 the Texas Legislature re-wrote the self defense statute. The actor's belief that the force was immediately necessary is presumed to be reasonable if the alleged victim was unlawfully and with force entering or attempting to enter, the defendant's habitation, vehicle, or place of business or employment; or if the alleged victim was unlawfully and with force removing or attempting to remove the defendant from his habitation, vehicle, or place of business or employment. The Defendant can not have provoked the person and can not have been otherwise engaged in criminal activity other than Class C misdemeanor offense. The State must prove beyond a reasonable doubt that the facts giving rise to the presumption do not exist, or the jury must find the presumed fact exists. Section 9.31 Texas Penal Code effective 9/1/2007. See form for jury charge in Texas Practice Series Vol. 8, Criminal Forms and Trial Manual Section 106.6A, McCormick and Blackwell.

Self defense in the use of deadly force under the same circumstances above no longer

requires the defendant to retreat. See Section 9.32 Penal Code, Effective 9/1/2007. See form for jury charge in Texas Practice Series Vol. 8, Criminal Forms and Trial Manual Section 106.7, McCormick and Blackwell.

DEFENSE MOTIONS

Motions to file

The motion to quash is an important tool in most assault cases. The State is entitled to allege that the acts occurred "recklessly". Assault is a result oriented crime. Therefore recklessly should be defined in the jury charge as "A person acts recklessly or is reckless with respect to the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint." Penal Code 6.03 (c). Article 21.15 of the Code of Criminal Procedure requires that if recklessness is alleged, in order for the information or indictment to be sufficient, it must allege, with reasonable certainty, the act or acts relied upon to constitute the recklessness, and in no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly. State v. McCoy, 64 S.W.3d 90 (Tex.App.-Austin 2001).

State v. Meadows, 170 S.W.3d 617 (Tex.App.-El Paso 2005), reversed a trial court's granting a motion to quash the indictment on a lack of jurisdiction. The Defendant alleged that prior conviction was not for family violence and therefore could not be used to enhance the present case to a felony. The trial court could not require the State to prove that the prior conviction involved family violence at a pretrial hearing.

The motion for discovery can determine if there is a 911 tape recorded call, who the witnesses will be, and whether there are any photographs of any injuries available. Also, it includes the statutory right to be told of any statement made by the defendant. Article 39.14 C.C.P.

The motion to suppress the warrantless arrest and search may be filed. Most arrests will fall under Article 14.03 which allows an arrest without a warrant. However, the burden is always upon the State to prove an exception to the warrant requirement. This might give the defendant a pretrial hearing on the legality of the arrest. Included in this motion is the request to suppress all statements made by the defendant. This gives the attorney the opportunity to litigate whether the statements meet Article 38.22 C.C.P. and whether the statements will be admissible at trial.

Also, there could be an issue in the warrantless entry into the house. If the defendant refuses the police entry, the Supreme Court has held that the use of a wife's consent to enter a house over the objections of the husband was unreasonable, in a possession of cocaine case. Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515 (2006).

The request for notice under 404(b) and 609 of the Rules of Evidence and 39.14 (b)C.C.P. of expert witnesses and 37.07 C.C.P. are useful tools for the defense in family violence cases. Extraneous offenses should be discovered in advance of trial. Prior convictions of the State's witnesses must be disclosed if requested. Many of the State's counselors want to testify as "experts" concerning the battered person syndrome. This information must be disclosed or it is not admissible.

STATE'S MOTIONS

A request for notice of expert witnesses pursuant to the Code of Criminal Procedure Art. 39.13(b) should be filed by the State to determine if the defense intends to present any expert witness testimony under Rules 702, 703 or 705 of the Texas Rules of Evidence. The Court may order that the defense disclose such evidence no later than the 20 th day before the trial begins. The notice must include the name and address of the witness.

ETHICAL DILEMMAS FOR THE DEFENSE

Conflict of Interest

Can the lawyer give advice to both the husband and wife?

Rule 1.06 of the Disciplinary Rules states: A lawyer shall not represent opposing parties to the same litigation. The lawyer may represent both parties with full disclosure and consent and the lawyer believes the clients will not be materially affected.

Rule 4.03 Dealing with unrepresented persons. When the lawyer knows that the unrepresented person misunderstands the lawyer's role, the lawyer shall make the effort to correct the misunderstanding.

Fear of False Testimony

What does the lawyer do if he fears the victim is going to lie to help her husband avoid conviction?

Rule 3.03 states the lawyer shall not offer or use evidence that is false. Rule 3.04 states the lawyer shall not obstruct evidence or assist another in doing so or acquiesce in the offer of payment to a witness or assist a witness to testify falsely.

Rule 1.15 Terminating Representation. The lawyer must terminate his representation if (1) the client persists in action the lawyer believes may be criminal or fraudulent, or (2) the client uses the lawyer's service to perpetrate a crime.

Avoiding a Subpoena

Can the lawyer discuss whether the State's witness should appear in court?

There is a federal crime of obstruction of justice and the state crime of tampering with a witness. Texas Penal Code 36.05. A person commits an offense if he coerces a witness or prospective witness in an official proceeding:

(1) to testify falsely;

(2) to withhold any testimony...

(3) to elude legal process summoning him to testify or supply evidence;

(4) to absent himself from an official proceeding to which he has been legally summoned ; or

(5) to abstain from, discontinue, or delay the prosecution of another.

What is a Valid Subpoena?

Article 24.04 of the Code of Criminal Procedure sets out how a subpoena may be served. It now includes:

(1) Reading the subpoena in the hearing of the witness;

(2) Delivering a copy of the subpoena to the witness;

(3) Electronically transmitting a copy of the subpoena, receipt requested, to the last known electronic address of the witness; or

(4) Mailing a copy of the subpoena by certified mail, return receipt requested, to the last known address of the witness.

Article 24.05 of the Code of Criminal Procedure sets the fine in a misdemeanor case for refusing to obey a subpoena as " not to exceed one hundred dollars."

ETHICAL DILEMMAS FOR THE STATE

Can the State represent the victim in obtaining the protective order and then prosecute the defendant in the criminal case?

Section 81.007 provides that the county attorney or criminal district attorney is responsible for filing protective orders. Section 81.0075 of the Family code specifically says that the prosecuting attorney who represents a party in a protective order is not precluded from representing the Department of Protective and Regulatory Services in a subsequent action involving the party. However, there is no corresponding language in reference to prosecuting the criminal case.

Rule 1.06 Conflict of Interest Rules of the Texas Disciplinary Rules of Professional Conduct applies to prosecutors. It only becomes a concern when the "victim" becomes uncooperative with the prosecutors office. Rule 1.06(b)(1) provides a lawyer shall not represent the person if the representation involves a substantially related matter in which that person's interest are materially and directly adverse to the interest of another client of the lawyers firm. If the "victim" wishes to not prosecute the criminal matter after the state has represented the person in a protective order hearing, there is an argument under the Rules that the prosecutor's offices is conflicted out and can not represent the State of Texas against the defendant.

Another ethically challenging circumstance arises if the defendant is unrepresented at the time of the protective order and the prosecutor is required to engage in conversations with the defendant. Rule 4.03 T.D.R.P.C. requires that in dealing with an unrepresented person, the lawyer should not imply they are disinterested. When the lawyer should know that the unrepresented person misunderstand the lawyer's role, the lawyer shall make reasonable efforts to correct the misunderstanding. Unfortunately dealing with an unrepresented defendant in the protective order may also result in the lawyer becoming a witness in the criminal case which would violate Rule 3.08 of the Texas Disciplinary Rules of Professional Conduct. A Court who refused to disqualify the elected District Attorney on the basis of a violation of the disciplinary rules was not subject to mandamus. The defendant has an adequate remedy at law by appealing any conviction. State ex rel. Young v. 6 th Dist. Court of Appeals , 236 S.W.3d 207 (Tex. Crim. App. 2007).

Section 81.007(c)of the Family Code requires that the prosecutor comply with Article 5.06 of the Code of Criminal Procedure.

Article 5.06 Duties of Prosecuting attorneys and court

The Code of Criminal Procedure sets out certain restrictions on a prosecutors office involving family violence cases. 5.06(a)(1) They may not dismiss or delay any criminal proceeding that involves an offense constituting family violence because a civil proceeding is pending or is not pending. 5.06 (a)(2) mandates that they may not require proof that a complaining witness, victim, or defendant is a party to a suit for the dissolution of marriage before presenting a criminal allegation to a grand jury, or otherwise proceeding with the prosecution in a criminal case. 5.06 (b) states that the decision to file the protective order should be made without regard to whether a criminal complaint has been filed. It allows the prosecutor to require the applicant to provide information for an offense report with a local law enforcement agency. 5.08 of the Code prohibits requiring mediation in Family Violence cases.

Dealing with unrepresented Defendants

A defendant may voluntarily and intelligently waive in writing the right to counsel. A waiver obtained in violation of Article 1.051 of the Code of Criminal Procedures is presumedinvalid. In any adversarial judicial proceeding that may result in a punishment by confinement, the attorney representing the state may not:

(1) initiate or encourage an attempt to obtain from a defendant who is not represented by counsel a waiver of the right to counsel; or

(2) communicate with a defendant who has requested the appointment of counsel, unless the court or the court's designee authorized under Article 26.04 to appoint counsel for indigent defendants in the county has denied the request and, subsequent to the denial, the defendant:

(A) has been given a reasonable opportunity to retain and has failed to retain private counsel; or

(B) waives or has waived the opportunity to retain private counsel.

Dealing with families and/or households in turmoil can lead to many ethical dilemmas for prosecutors as well as defense counsel.

CONCLUSION

Family Violence Assault cases have many difficult and interesting issues involved. However, attorneys can become the focus of the anger that already exists in the relationship so that caution is extremely necessary when giving advice in these volatile circumstances. Safety of all parties should be a priority of all involved. Battering and controlling individuals can be the defendants, the alleged victims or witnesses, particularly other family members. These personality traits exist in gay relationships. Females have been shown to also demonstrate these disorders. Caution should be taken by the attorney to avoid becoming a tool of this personality. Information from the National Domestic Violence Commission can be obtained at 1-800-903-0111. The National Domestic Violence Hotline is 1-800-799-SAFE.

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