How can you get a first-time assault charge dismissed in Texas? Criminal Defense Attorney Benson Varghese offers these five tips in this short video.
Here are five ways to have an assault charge dismissed in Texas. One of the most common questions I get from a person facing a first-time assault charge is, “How can we get this case dismissed?” The reality is, many assault cases, particularly those involving allegations of family violence or domestic violence and particularly first-time charges stem from instances where there was some sort of heated encounter but now the parties have reconciled and the alleged injured party regrets the fact that the police were involved. Oftentimes there’s some sort of intoxicant like alcohol also involved in the situation.
As a starting point, it’s important to understand the rules that apply to an assault family violence case are different than almost any other type of case and here’s why. In Texas, we have what’s called the nature of the relationship rule. That means both sides can enter evidence regarding the nature of the relationship that might help a juror understand whether or not an assault took place.
So what does that mean for the person accused? Well, if the alleged victim has in the past been an aggressor, an instigator or an abuser those might be things that are relevant and come in for the jury’s consideration. And while less than 1% or 2% of cases go to trial that is important because it means during negotiations we can discuss these matters and leverage them for your benefit.
Second, it’s important to understand how to best use an alleged victim who no longer wants to prosecute. Many people think that an affidavit of non-prosecution, that’s an affidavit filed by the alleged victim saying they no longer want to prosecute, that they won’t hold the DA’s office responsible for dropping charges and perhaps says the offense didn’t even take place, will result in a dismissal. But the reality is, in almost any major County in Texas an affidavit of non-prosecution is not going to get the case dismissed. Rather than just filing an affidavit of non-prosecution a good defense attorney is going to take the opportunity to create a record not just for the immediate negotiations but also for the possibility of trial someday. Because the reality is prosecutors, not the alleged victims, get to decide when and if cases are dismissed. And there are certainly cases where things go to trial without the cooperation of the alleged injured party.
The third way to get your case dismissed is to work on mitigation. At our office when we’re facing almost any type of criminal charge we’re coming up with a mitigation packet. That means we’re taking you from being a number or a file on a prosecutor’s desk, and for a misdemeanor prosecutor they may have over a thousand cases on their desk at any given time, and transforming you into a person who has redeeming qualities and we give them reasons why your case should be dismissed. So your past life, your volunteer work, your academic achievements, your achievements at work, character letters, things that set you apart from people in general but certainly the other thousand cases that are sitting on that prosecutor’s desk are ways to increase our leverage. And that could take a borderline case to being a case that the prosecutor no longer wants to support.
The fourth way to get your case dismissed is to be thorough when you explain the facts to your attorney. The attorney is going to be looking for affirmative defenses such as self-defense, defense of a third party, even defensive property. But the attorney is also going to be looking for other factors such as whether or not alcohol was involved, the mental state of the alleged victim, whether or not the alleged victim has made an accusation like this in the past, and the overall credibility of the alleged victim.
The fifth way to get your case dismissed is to be patient. In every assault case that our office has handled we have outworked and out prepared the prosecutors. That’s a function of the resources we have, the time and energy to really dig in deep, to talk to witnesses, to develop background information that the prosecutor simply does not have. With a thousand cases on their desk they can not devote the time and energy nor do they have the inclination to look at or develop all the defensive matters that they could consider if it were brought to their attention.
Time and time again, by being persistent, we have had cases dismissed. And in those rare cases where we have not been able to secure a dismissal the months of work that we put in ensured that when we went to trial we were able to put our best foot forward. Patience more times than not will help you get the outcome that you’re looking for.
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Have more questions about an assault charge in Texas? Call us today at (817) 203-2220 or reach out online for a complimentary strategy session.