Assault Family Violence

Assault family violence is just a type of assault. It has the same elements as all other assaults. What makes it different is that a judge makes a finding of family violence if the alleged victim was a member of the accused’s household as defined by the Family Code.

The elements are:

•  Intentionally, knowingly, or recklessly causing bodily injury to someone else;
• Intentionally or knowingly threatening someone else with imminent bodily injury;
• Intentionally or knowingly causing physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative

Q. What if the alleged victim does not want to prosecute?

If the alleged victim does not want to prosecute, in most cases the District Attorney’s Office will not automatically dismiss the case.

The alleged victim usually has to come to the District Attorney’s Office to complete a form called an affidavit of non-prosecution. The affidavit of non-prosecution says that the alleged victim is aware of what the charges are, does not want to participate in the prosecution, and will not hold the District Attorney’s Office responsible if anything else happens between the accused person and the alleged victim.

After the affidavit of non-prosecution is completed the case will in most cases have to be set for trial. Most District Attorney’s Offices in North Texas will not dismiss a assault family violence case unless the case is set for trial and the alleged victim is uncooperative or does not show up for the trial.

Q. What are the possible penalties for assault family violence case?

If the charge is a first offense for assault family violence it is a class A misdemeanor in most cases. A class A misdemeanor carries a range of punishment of up to 1 year in county jail and/or a fine not to exceed $4,000. This range of punishment can be probated. If probation is granted there will be different conditions of probation. The conditions of probation include no contact with the alleged victim, a batterer’s intervention program, anger management, community service, and reporting to a probation officer once a month.


If the charge is a first offense, but the facts allege that the alleged victim was choked it is a third degree felony. A third degree felony carries a range of punishment of 2-10 years in prison and/or a fine not to exceed $10,000. This range of punishment can be probated.

It is a second degree felony if it is alleged that the alleged victim was choked and the accused has previously been convicted of assault family violence. This range of punishment can be probated. The range of punishment for a second degree felony is 2-20 years in prison and/or a fine not to exceed $10,000. This range of punishment can be probated.

If the charge is the second offense for assault family violence it is a third degree felony.

There is a new offense for continuous violence against the family. This offense is also a third degree felony.

Q. Can an assault family violence conviction be cleared from a criminal record?

No. A criminal record for assault family violence can not be sealed even if the person received deferred adjudication probation.

However, an expungement can be obtained if the case was dismissed or the person was acquitted after trial and the statute of limitations has run.

You Can't Search! This Is Not My House!

Question:

Can Police search a house that is occupied by one person, but owned by someone else?

Answer:

Search and Seizure law and the exclusionary rule are very fact intensive. Therefore, without having all the facts it is difficult to give a complete answer to the question. There are many grey areas and part of the determination as to whether or not a piece of evidence is going to be admitted at trial is dependent upon the Judge.

The law regarding this issue starts with the Fourth Amendment to the United States Constitution and section 38.23 of the Texas Code of Criminal Procedure.

The Fourth Amendment States: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Texas Code of Criminal Procedure 38.23 states: (a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained. (b) It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.

The code section that discusses search warrants and whether or not officers can do certain things is Texas Code of Criminal Procedure 18.06, which states in part: On searching the place ordered to be searched, the officer executing the warrant shall present a copy of the warrant to the owner of the place, if he is present. If the owner of the place is not present but a person who is present is in possession of the place, the officer shall present a copy of the warrant to the person. Before the officer takes property from the place, he shall prepare a written inventory of the property to be taken. He shall legibly endorse his name on the inventory and present a copy of the inventory to the owner or other person in possession of the property. If neither the owner nor a person in possession of the property is present when the officer executes the warrant, the officer shall leave a copy of the warrant and the inventory at the place.

The tool used to question whether or not the officers can do certain things is called a Motion to Suppress. Although I have provided the basic law on this issue, Judge's interpret the law differently. The issue has to be put in front of the Judge and can be done pre-trial if allowed by the particular Court that the case is in. Some courts run the Motion to Suppress with the trial.

Please note that there are volumes and volumes of case law, articles, treatises etc. regarding search and seizure, the fourth amendment and the exclusionary rule. I could write for days and still only cover a fraction of the complexities of this issue. Although it is always prudent to educate yourself regarding these issues, if you have a case pending in which this is an issue an experienced attorney should be consulted to assist you.

How to Fight A False Sexual Assault Allegation

There are many different types of sexual assault offenses for which a person can be charged with.  The list includes possession of child pornography, indecent exposure, internet crimes, lewd conduct, online solicitation of a minor, aggravated sexual assault, sexual assault and solicitation of prostitution.

For as many types of offenses as there are there are just as many if not more defenses and tools that a Dallas Criminal Defense Attorney has at their disposal.   One of those tools is called a grand jury packet.  A grand jury packet is a presentation that a Criminal Defense Attorney can put together to attempt to get a sexual assault case no billed or to make it go away.

A grand jury packet can include information that generally is not admissible in a court of law.  A criminal defense attorney is not allowed to go into the grand jury proceeding in person, but can send written material in to be consider.  This presentation can mean all the difference in whether or not the prosecution of a sexual assault case goes to the next stage.

Some of the items that can be included in a grand jury packet are:

• Letters of good character;
• Favorable polygraph results;
• Legal research
• Expert witness affidavits and reports
• Test reports from tests designed to determine a persons propensity to be a pedaphile;
• Military records
• School records
• Favorable psychological tests;
• Evidence of victims history of making false allegations; and
• Many other types of evidence that show the Defendant's innocence.

Utilizing these tools, however, requires that a person to contact and retain an attorney as soon as the allegation and learned about.  A grand jury packet has to be put together and submit before the grand jury meets to discuss that person's case.

Statutory Rape and Age of Consent in Texas

Statutory Rape is a type of sexual assault case in Texas in which the very age of the person the accused has had sex with makes it a sexual assault.  If the child is older than 14 years old, but younger than 17 years old and there is more than 3 years age difference between the child and the accused the Texas penal code 22.011 classifies it as sexual assault.

This is because in Texas the age of consent is 17.  A person 16 years old or younger cannot give consent to sexual intercourse.  It is important to note that this includes oral sex.

A statutory rape charge is most times brought by someone other than the minor child.  It is usually brought by someone in a position of authority that learns about the sexual activity or by the parents of the minor child.  The charge can even be brought by the State of Texas.

Sexual assault is a second degree felony in most cases.  If the accused case is not dismissed, the range of punishment for this offense includes probation or jail time between 2 and 20 years and an optional fine not to exceed $10,000.  It also includes sex offender registration, which is a lifetime requirement in most cases.

What Are the Penalties for Sexual Assault/Rape

A charge of sexual assault or rape is a very serious charge, which carries some very hefty penalties if convicted.  It is important to understand what those penalties are when you are thinking about how serious you want to be about fighting the charge.

Before I get into the penalties, however I want to address some of the emotions that a person may be going through if charged that may cause them to do the wrong thing.  When someone first finds out that they have been charged they are usually angry, frustrated, embarrassed and overwhelmed all at the same time.  These feelings cause the person to want to immediately go to the police and other people and give their version of what happened because they think it is the right thing to do. Wrong!  DO NOT GO TO THE POLICE OR TALK TO OTHER PEOPLE   about this charge without your attorney.  No matter what you say to the police or other authorities they will not believe you and will use everything that you say against you.  No matter how long you have known other people or how much you trust them, if you tell them anything you have just made them a witness. The first thing you should do before you do anything else is:

1. Get your emotions under control;
2.  Keep quite; and
3. Call an attorney.

Now that we have that out of the way, let’s talk about the potential penalties.  Sexual assault in most cases is a 2^nd degree felony.  In the state of Texas a 2^nd degree felony carries a possible punishment range of 2-20 years in prison and/or a fine not to exceed $10,000.  This offense can be elevated to a first degree felony if the alleged victim is under the age of 14 years old and was a person whom the alleged actor was prohibited from marrying, or purporting to marry or with whom the actor was prohibited from living under the appearance of being married. A first degree felony in Texas carries a possible range of punishment of 5 years to 99 years or life.  Of course probation of sentences is a possibility as well.

In addition to the possible penalties listed above there is also sex offender registration, which in most cases is lifetime.

There are many tools and defenses that can be used to fight this type charge.  The question is how serious are you about fighting them?  I take fighting them very seriously.  Call me.  Let’s talk about it.

Expungement vs. Petition for Non-Disclosure

An expungement is the removal of any and all records or references to a criminal arrest, charge or prosecution.You can only get an expungement in Texas if your case was dismissed, you were found not guilty, or an indictment was not executed. Also,The statute of limitations has to have run.

A  petition for non-disclosure seals the criminal arrest, charge or prosecution from the public, but it is still accessible to law enforcement agencies and certain licensing agencies. You are eligible for a petition for non-disclosure if you received deferred adjudication probation and successfully completed it.  The statute of limitations has to have run. If it is a felony you must be off of probation for 5 years before applying.  Also, the offense charged cannot be one of the cases prohibited from non-disclosure such as murder, DWI, or sex assault.

There are several other factors to be considered when determining qualifications.

If you would like to learn more about the statute of limitations and how it applies to your case, or if you need your criminal record expunged, contact expungement attorney Sharita Blacknall at 214-678-9111.

Expungement and the Statute of Limitations

In Texas the prosecution has a certain time frame in which a criminal case must be filed.  That time period is called the statute of limitations.  The time period depends upon the type of offense.  Once that time period passes, the prosecution cannot initiate criminal proceedings against the defendant.  For instance, Injury to a child has a five year statute of limitations.  Therefore, if the prosecution does not initiate criminal proceedings within five years of the date of the offense they cannot go forward unless an exception exists.

The statute of limitations is important because it is one of the factors that determines eligibility for cleaning a criminal record.  In other words, an expungement cannot be granted unless the statute of limitations has run.  This restriction is put in place so that the prosecution does not lose its right to file charges before the statute of limitations runs.



If you would like to learn more about the statute of limitations and how it applies to your case, or if you need your criminal record expunged, contact Dallas expungement attorney Sharita Blacknall at 214-678-9111.