Family Violence

September 6, 2023

Can Children Testify in a Texas Criminal Case?

In the legal landscape of Texas, the question of whether children can testify in a criminal case is an important one. Children’s brains are still developing and they don’t always have a firm a grasp on the difference between the truth and a lie. Not only that, but some children may not understand the importance of being truthful, even if they know the difference. And, of course, there is always the very real possibility that an interested adult influences a child’s testimony. Needless to say, the ability of a child to provide testimony can significantly impact the outcome of a case, so it is crucial to understand the laws and processes involved.

Understanding the Legal Age of Testimony in Texas

When it comes to testifying in a criminal case, the age of the child plays a significant role. In Texas, there is no specific age requirement for a child to testify. Rather, the criterion for determining a child’s competency to testify is their ability to understand and answer questions truthfully.

Testifying in court can be a daunting experience for anyone, let alone a child. Therefore, the Texas legal system takes into account various factors when deciding whether a child is capable of providing reliable testimony. One such factor is the child’s intellectual capacity. The court assesses whether the child possesses the cognitive abilities necessary to comprehend and respond to questions accurately.

January 21, 2023

Texas Court of Criminal Appeals Reverses Appellate Court, Affirming Defendant’s Conviction for Failing to Provide Medical Care to Her Child

by Robert Guest

In a recent Texas criminal case, the State petitioned the Court of Criminal Appeals of Texas after a ruling from the Eleventh Court of Appeals found that the Appellant in a criminal case was entitled to a concurrent causation jury instruction, reversing in part a judgment by the trial court. The Appellant was convicted by a jury and sentenced to fifteen years’ imprisonment under Texas Penal Code § 22.04 for recklessly, by omission, causing serious bodily injury to her child and failing to protect her child from being struck against a hard surface by her husband and subsequently failing to provide medical care.

Facts of the Case

On June 29, 2013, the Appellant was in the kitchen of her family home in Denver City, Texas, when her husband began to choke and shout expletives at their youngest child. The couple’s older daughter testified that the Appellant subsequently entered the room and instructed her husband to “stop hurting the baby.” Later that night, the Appellant noticed that the youngest child was experiencing seizure-like symptoms and called her mother-in-law, who was a retired nurse, to ask for advice. The mother-in-law instructed the Appellant to give the youngest child a Tylenol and continue monitoring her. The next day, the child began to exhibit seizure-like symptoms again, so the couple decided to bring her to Covenant Hospital in Lubbock instead of the local hospital in Denver City. While the Appellant originally told investigators that they drove nearly an hour to Lubbock because they did not trust the doctors in Denver City, later testimony revealed the decision was made to avoid Child Protective Services (CPS).

At the hospital, it became apparent that the child’s injuries had resulted from non-accidental abuse, and the staff contacted CPS and the Lubbock Police Department to coordinate an investigation. Based on the police investigation and medical findings regarding the injury, both the parents were arrested and charged under Texas Penal Code § 22.04. At trial, the Appellant was convicted and sentenced to fifteen years’ imprisonment. On direct appeal, she raised two grounds for review: (1) the trial court erred when it refused to instruct the jury on concurrent causation, and (2) the evidence at trial was legally insufficient to support a conviction under § 22.04 of the Texas Penal Code. The appellate court sustained the Appellant’s first issue, reversing the judgment of the trial court. On the second issue, the appellate court ruled that the evidence presented at trial was sufficient, to find both Appellant’s omissions caused serious bodily injury to the child beyond a reasonable doubt.

September 12, 2022

Domestic Violence Accusations and Firearm Ownership Rights

by Robert Guest

Criminal, statutes in Texas and nationwide have long included specific provisions to address domestic violence offenses. Early statutes were only able to protect spouses from the alleged abuse, but the laws have developed in a way that now includes cohabitating parents, and even dating partners who do not live together and share no children. The recent expansion of the definition of domestic violence under federal law to include “dating violence” may affect the civil rights of Texans who have been accused of domestic violence offenses. More specifically, a conviction may mean that you are prevented from legally owning a gun, despite your Second Amendment rights.

The Second Amendment to the U.S. The Constitution protects the rights of Americans to keep and bear arms. Although many challenges to the Second Amendment have failed over the years, the U.S. The Supreme Court has ruled that the federal government can restrict people who have been convicted of a domestic violence offense from owning firearms. Congress passed such a law in 1968, and it has been used to keep firearms out of the hands of those who have committed domestic violence. Over the years, courts have upheld this restriction on gun ownership, finding that it is a reasonable interpretation of the Second Amendment.

As the definition of domestic violence has expanded under both Texas and Federal law, the application of the federal law restricting gun ownership has become broader. Cases that in the past would not have qualified for a firearm restriction are now serving as the basis of a restriction. The federal law that restricts gun ownership is applied automatically to any person convicted of a state-level domestic violence offense or who is subject to a domestic violence-related protective order.

November 23, 2021

Dallas Appellate Court Finds the Texas Stalking Statute Unconstitutional

by Robert Guest

Recently, the Court of Appeals for the Fifth District of Texas at Dallas issued an important decision holding the state’s stalking statute unconstitutional. While lawmakers are responsible for writing and passing laws, courts must interpret the laws as they are written. However, courts are also the final arbiter in determining whether a law is constitutional. While most laws pass constitutional muster, some do not, as evidenced by the court’s recent decision.

The Facts of the Case

The defendant in the case was arrested and charged with felony stalking for conduct taking place between January 1, 2007, and April 24, 2018. More specifically, the complaint alleged that the defendant engaged in conduct that caused the complaining witness “to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended” and “would cause a reasonable person to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended.” Evidently, the defendant posted comments on social media and made other public statements that the complaining witness considered threatening.

At the time, the Texas stalking statute made it a crime to commit more than one act of “electronic-communications harassment” under § 42.07. That statute provides that a person repeatedly sends “electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.” Thus, the stalking statute directly references the harassment statute, making it a stalking offense to engage in a continued course of harassment.

December 28, 2020

Defending Family Violence Charges With A Pending Divorce

by Robert Guest

What happens if you are facing a criminal charge for assault family violence, while you are getting divorced? Our law firm handles both criminal defense, and family law matters. We have seen cases in which one party, let’s say the Husband, is charged with family violence against his Wife, and a divorce is pending.

The first issue that’s going to come up is usually a protective order. If Husband was arrested for assault family violence, then often the judge (magistrate) who sets his bond will issue an emergency order of protection. This order will often forbid the defendant (in our case, Husband) from many things including returning to the residence, threatening the Victim (complaining witness), or possessing a firearm. If you are getting divorced this will essentially ban a defendant from accessing the marital residence.

If you have been arrested and are facing a divorce with a protective order you will want to see understand what options you have to challenge the protective order and to challenge a finding of family violence being entered.