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Defense of a Domestic Violence Crime:

False allegations of domestic violence can affect every part of a person's life. Depending on any given individual's personal circumstances, a domestic violence defendant can watch their job security crumble and relationships that they held dear vanish at a moment's notice.

There are graduated penalties for these types of offenses depending on the particular circumstances of the event and the history of the individuals involved. Many, if not most, of the penalties are severe; even sentences of probation often come with special conditions that make successful completion more expensive, time consuming and difficult.
In addition to the criminal charge itself, domestic violence cases carry far-reaching collateral consequences which can be more severe than the criminal penalty itself. The consequences include but are not limited to: your ability to own and possess a firearm, serve in the military, your ability to live in your home or maintain contact with your children.

Under Texas law, family violence is defined as "(1) An act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault or sexual assault or that is a threat the reasonably places the member in fear of imminent physical harm, bodily injury, assault or sexual assault, but does not included defensive measures to protect oneself; (2) Abuse by a member of a family or household toward a child of the family or household; or (3) Dating violence."

Domestic violence is typically a Class A Misdemeanor in Texas, but may be enhanced to felony domestic violence in two scenarios: the first type of felony domestic violence occurs when there is choking involved (the victim's breath must have been impeded). Assault on a Family Member-Impeding Breath is a 3rd degree felony with a punishment range of 2-10 years in prison and/or a $10,000 fine.
Misdemeanor assault of a family member may also become felony domestic violence if the accused has previously been convicted of assault of a family member. Assault on a Family Member-2nd Offender is a 3rd degree felony, and carries a maximum punishment of 10 years in prison and/or a $10,000 fine.

Often, when there is a charge of domestic violence, a protective order, also known as a restraining order, may be issued. This order can keep you from returning home if you live with your accuser and can affect a child custody dispute. Violating this protective order, even with the consent of your accuser, can result in jail time and additional criminal charges.

 

Injury to a Child by Omission:

"Injury to a child by omission" means that the legal guardian, or someone with the legal duty to support/protect the child, failed to take an action they should have taken and the failure to take that action caused injury to the child.

While most felony child abuse charges stem from a direct act by a defendant in the context of an assault, either intentionally or recklessly causing some contact with a child that results in an injury- child abuse also applies to omissions or things that a person failed to do. This is one of the few felony offenses where a person is punished for not doing something.
Child abuse charges from omissions only apply to a parent or another person who has taken over the parenting or caretaking function, such as a nanny or baby sitter. Examples could include punishment techniques involving the deprivation of food or water, or failing to obtain proper medical treatment for a child, even when the denial of treatment is based on religious beliefs.

It is extremely common for law enforcement, either a local police agency or Child Protective Services (CPS) to conduct investigations of child abuse or endangerment without notifying the accused that they are being investigated for a felony. A seemingly innocuous request to have an in-person interview may be an attempt to get a confession. If you have any question about why you've been contacted for an investigation you should speak with a lawyer immediately.

For more information see our blog article "Injury to a Child by Omission in Texas"

 

Non-U.S. Citizens:

Of particular importance are the potential consequences for non-U.S. citizens. Federal Law can characterize these offences as "Aggravated Felonies", "Crimes of Violence" and "Crimes of Moral Turpitude" even when the criminal charge itself is only a Misdemeanor. As a result, these charges can and often do result in deportation, denial of naturalization and exclusion from admission to the United States. A person charged with these types of offences may be subject to these collateral consequences even where they received deferred adjudication, a petition for non-disclosure, or an expunction. It is imperative that your legal representation understands not only the Criminal Law implication, but is fluent and capable of addressing the collateral consequences as well.

"Heat of Passion" Defense:

"Heat of passion" is a legal defense argument usually raised in murder, attempted murder or manslaughter cases, and is intended to eliminate the element of premeditation. A defendant may use it when they want to argue that their actions were provoked by intense and immediate emotions such as fear, rage, anger or terror. A key issue in the defense is adequate provocation, a situation that might naturally cause a reasonable person, in the passion of the moment, to lose self-control and act on impulse without taking an opportunity to reflect on the outcome.
An example of this defense could be illustrated by a case in which a spouse or lover finds their partner sexually involved with another person, goes into a rage and kills one or both of them. If the defendant acted immediately after or during the provocation, without taking the time to rationalize their actions, it may eliminate the element of premeditation and may help reduce a person's criminal charges or sentence. It is sometimes called the "Law of Texas" since juries in that state are supposedly lenient to lovers who wreak their own vengeance. Heat of passion is not used to dispute whether a person is responsible for their actions, but to defend the particular state of mind that a person was in when those actions were committed.

When the law defines an action as a criminal offense, that definition is usually very specific. Legal definitions of a crime commonly contain a number of circumstances, or elements, that must exist. Premeditation is one element clearly stated in the definition of many crimes, referring to the thoughts, plans or ideas that a person has relative to the crime before it is actually committed. The heat of passion defense disputes any intentions to commit the crime before the defendant was placed in the situation where the crime was committed, and is used to argue that a person's actions were impulsive.

But premeditation is not the only issue to consider when arguing heat of passion: in order to effectively apply this argument the circumstances must generally be such that another reasonable person, in a similar situation, would have reacted in a similar fashion. This means that the defendant's mental state at the time of the offense has to be taken into account, and it must be determined that their mental state is "reasonable" even though they were in an obvious state of extreme emotional duress. In an example such as the one above a judge or jury would need to consider whether adultery or infidelity could cause another person of sound mind to lose control and commit the same crime under the same circumstances.

In the Texas State Penal Code (Sec. 19.02.) "Sudden passion" is defined as "...passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation."
The law further states in paragraph (d) that "At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree." In this situation the heat of passion argument is central to discriminating between first and second degree charges.

For more information see our blog article "Heat of Passion Defense"

 

Being charged with domestic violence does not mean you are automatically convicted. Many domestic assault cases rely solely on an accusation from the victim with no corroborating witnesses, and we may be able to challenge the accuser's credibility. Contact Parnham & Associates today at (713) 224.3967 or use our convenient online submission form. Depending on the circumstances, we have many options in mounting a strong defense for you.

Our attorneys are intimately familiar with all facets of criminal defense and may help clients with the following:

• Work to get the charges dropped or lowered
• Interview police, involved parties, and any possible witnesses to expose any lies or exaggerations
• Make sure that no evidence against our client was obtained illegally
• Conduct a thorough pre-trial investigation
• Employ a private investigator, ballistics expert, polygraphist, or any other experts that may be able to help strengthen our client's defense
• Obtain expert witnesses to testify on behalf of our clients
• Negotiate with prosecutors to make sure our clients face the minimum possible penalties

If you have been accused of a crime, please contact us today for a free consultation with an aggressive and resourceful criminal defense attorney. We will work tirelessly to ensure the best possible outcome for your case.

 

This is for general informational purpose only. This information: • DOES NOT represent a legal advice or opinion, • DOES NOT create an attorney-client relationship, • DOES NOT account for community-supervision eligibility, special punishment issues, mandatory minimum confinement, enhancements, and "Exceptional Sentences" under Chapter 12 Subchapter D of the Texas Penal Code, • DOES NOT apply Corporations & Associations. • DOES NOT represent the unique circumstances of your case.