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By Benson Varghese

Published on: August 26th, 2020 at 7:00 PM
Last Updated: August 31st, 2020 at 5:52 PM

Assault cases carry serious consequences, many of which are not obvious. This article covers nine of the top mistakes we see in assault cases – assumptions made both by individuals who are charged with assault, and sometimes, inexperienced attorneys handling these cases.

An assault is any offense under Chapter 22 of the penal code that alleges intentionally, knowingly or recklessly causing offensive contact, injury, or in some circumstances, just the threat of injury. An assault can range from a Class C misdemeanor all the way up to a first-degree felony with enhancements.

IntentionallyConscious objective or desire to cause the result
KnowinglyAware that one’s conduct is reasonably certain to cause the result
RecklesslyAware of, but consciously disregards, a substantial unjustifiable risk that the result will occur

Why you should listen to us

Before we get started, let’s talk about why you should listen to us. First and foremost, we have successfully defended every level of assault in Texas. Each of the Partners at the firm is an experienced Tarrant County assault defense lawyer. Second, we have a tremendous amount of trial experience – first as prosecutors and now as defense attorneys. The fact that we are a force to be reckoned with in trial means prosecutors make us better offers pre-trial, and when they don’t, we’re more than capable of going to battle.

Here are some of the biggest mistakes we see in Tarrant County assault cases:

# 1: Assuming the case will get dismissed with an ANP

One of the most common misconceptions about assault cases is that an Affidavit of Non-Prosecution (ANP) will get the case dismissed. It won’t. Here’s why: prosecutors see ANPs in a majority of their domestic assault cases. As a result, they don’t trust ANPs. In their mind, an ANP could be signed by an alleged victim for many reasons. The alleged victim may depend on the defendant financially or to be a co-parent. The victim may now have forgiven the defendant and want to get back together. Prosecutors are more concerned with trying to determine if an offense took place, rather that what the alleged victim wants. Some prosecutors actually prefer victims who do not want to cooperate. When they go to trial, they can just put up the officers who responded or took the report and play the 911 call. They don’t need to worry about the victim being cross-examined by the defense attorney. No civilian witnesses at all. It’s a dream for some prosecutors – and yes, I’ve watched prosecutors go to trial and win (not against me) Tarrant County assault cases without ever putting the victim up on the stand. If you’re thinking about your right to confront your accuser, keep reading this article for ways a prosecutor might get around this if you aren’t careful about how your case is handled. Any attorney who has been practicing long enough and has defended these cases in trial will tell you than an ANP often carries very little to no weight with prosecutors. Is it helpful to have? It might be, in some cases. Is an ANP going to get a case dismissed? No.

#2: Trusting the prosecutor to “do the right thing”

So if an ANP won’t get a case dismissed, will contacting the prosecutor get the case dismissed? There are good prosecutors and then there are prosecutors who are not so good. Being not so good can mean many things. Some are just overwhelmed with the number of cases they have, while others are new or inexperienced and they have yet to develop discernment. Many are true believers who think every initial report is accurate, and sadly, there are even unethical prosecutors who will hide the truth to put up another conviction. The vast majority of prosecutors are good people. They want to do the right thing. Understand that their determination of what is the “right” outcome may differ from your desired outcome. That’s why it’s important to find an attorney experienced in handling assault cases in the county your case is pending. Trust them to help you navigate these waters so you can maximize the chances of getting the result you are hoping.

#3: Accepting a deal that sets you up for a future felony

You have to be very careful when considering to take a plea – even to a lesser offense.  A plea could set you up for a felony in the future. For example, let’s say the prosecutor offers to reduce your Tarrant County assault charge to a Class C assault by contact ticket and defer any finding of guilt. Let’s say within a year, the alleged victim or some other family member calls the police and claims you assaulted them. Now, you are facing the felony charge of Continuous Family Violence. If you are considering a plea to deferred, even on a lesser charge, you will have to steer clear of even the possibility of another accusation of family violence over the next year.

It gets worse. The offense of Assault Bodily Injury to a Family Member (ABI-FM) with Prior Conviction allows a prosecutor to use a prior family violence offense – even if it was deferred – to raise a subsequent family violence offense at any time in the future to a felony. How? ABI-FM with a Prior Conviction is found in Penal Code 22.01(b-3)(2). It says a person convicted of a family violence offense under Chapter 22 (which includes Class C misdemeanors) who is subsequently charged with a family violence offense is now facing a felony. Penal Code 22.01(f) goes on to say that for this purpose even plea of deferred adjudication is considered a conviction!

(If you successfully completed a Class C deferred adjudication, be sure to contact us about an expunction as soon as possible in case you are ever charged with a new offense. An expunged offense cannot be used against you in the future.)

#4: Improperly handling Emergency Protective Orders (EPO)

An Emergency Protective Order (EPO) is an order handed down under Code of Criminal Procedure Article 17.292. This is different from bond conditions that may be associated with the criminal case.

An EPO can prohibit you from having contact with the alleged victim, communicating with them, contacting their family members, or going near them, their residence, or their work.  It may also prevent you from having a firearm. Protective orders range from 31 to 90 days. While you may be able to get the county or district court the case lands in to modify an EPO, you should generally be very cautious about filing a motion to modify an EPO. If you have a hearing, the prosecutor will shore up their witnesses – potentially even the alleged victim before the hearing. They will lock in testimony that could hurt you in the future. It will also make it possible for them to later try their case without calling the victim again without raising Confrontation Clause issues – because now you have had a chance to confront the witness in an EPO hearing well before trial.

#5: Not considering immigration consequences.

Immigration laws are not straightforward, especially when it comes to assaults. Crimes of domestic violence under 8 USC 1227(a)(2)(E) makes any alien removable. This includes “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” That’s a broad definition. Similarly, crime of moral turpitude (for example, a man assaulting a women, even outside domestic violence) can make a person removable or inadmissible. Aggravated felonies can also have the same result. Making matters even more complicated is the fact that deferred adjudication – which is not a conviction for state purposes – will be considered a conviction for immigration/naturalization purposes. If you are a non-citizen you absolutely should not be considering a plea without talking to an attorney.

#6: Assuming the lack of visible injury will set you free

Both misdemeanor and felony assault charges get filed everyday without a visible injury. For Assault Causing Bodily Injury (ABI), all the alleged victim has to do is say “it hurt.” There’s no requirement or even expectation that the prosecutors have to show a visible injury. Similarly, for felony offenses of choking and aggravated assault deadly weapon by threat, most cases have no visible injuries. So, the lack of any visible injuries alone won’t get your case dismissed.

#7: Assuming he-said, she-said will get dismissed

Many assault cases are very much a he-said, she-said (or he-said, he-said, or she-said she-said) situation. Most cases do not involve witnesses and there’s rarely corroborating evidence. Yet, prosecutors often hang on to assault cases despite what most would consider “weaknesses” because these are hallmarks of so many assault cases. Generally, if a call or report was made to the police that alleged one person caused another harm or injury, prosecutors tend to believe the initial report to the police even though there could be many reasons for fabrication. Police officers also often overlook issues of self-defense and mutual combat, not necessarily because they don’t care about conducting a thorough investigation, but because when they are called to an assault, they are usually going to arrest at least one person to defuse the situation and then “let the prosecutor sort out the rest.”

#8: Assuming calling 911 first means you won’t get charged

You’d be surprised at the number of times I have talked to a person charged with Tarrant County assault, or any criminal offense for that matter, who tells me they were the one who called the police. Calling the police is always risky. If they find one person to be more credible than the other, they may end up arresting the less credible person regardless of who called the police. Similarly, if one person has visible injuries and the other does not, the person without a visible injury may end up going to jail even if they were acting in self defense. Don’t assume that if you call 911, you won’t be arrested yourself.

#9: Underestimating the effect of enhancements

There are a number of ways a simple assault case can be enhanced. For example, if the accused assaulted a person over 65 or under 15, they are now facing a felony charge – even if they had no idea about the victims age. If the accused knew the person they were assaulting was pregnant, they are facing a third-degree felony charge. There are similar enhancements for past offenses, retaliation and for committing an assault while the area is under a State of Emergency or Disaster declaration.

Assault Enhancements in Texas

ElderlyInjury to someone over 65 will result in a felony charge.Ranges from State Jail Felony to First-Degree Felony
ChildInjury to someone who is under 15Ranges from State Jail Felony to First-Degree Felony
PregnancyInjury to someone the accused knew was pregnantThird-Degree Felony
Disaster DeclarationThe state of disaster enhancement increases an assault by one-level. A Class A misdemeanor becomes a state jail felony.Increases offense level by one.
Deadly WeaponUsing or exhibiting a deadly weapon during an assaultSecondDegree Felony
Peace OfficerAssaulting officers and certain public servantsThird-Degree Felony
Family Member (with Prior)FV Assault with a prior from any timeThird-Degree Felony
Continuous Family ViolenceTwo FV assaults with a yearThird-Degree Felony
RetaliationRetaliation against an officer, judge, etcSecond-Degree Felony
Repeat OffenderFelony offense with a prior prison tripIncreases felony by one level (excluding SJFs)
Habitual OffenderFelony offense with two prior prison trips25 years – life in prison

So what can you do to get a Tarrant County assault case dismissed?

There are three keys to a successful defense. First and foremost, don’t give any statements to anyone. You should not talk to the police, a detective, the alleged victim, friends, family – anyone – about the alleged offense. The only exception to this rule is you may speak to any attorney with whom you are consulting. Second, hire an experienced assault attorney. Find someone who has tried assault cases to juries in the county you are facing prosecution. Find someone who you trust, who has the time to devote to your case.

Call our Tarrant County Assault Defense attorneys for a free confidential consultation at (817) 203-2220.