Dallas Criminal Defense Lawyer Blog

If you are facing a trial for an assault family violence case you should be aware that evidence regarding the relationship between the parties may be admissible. This can be powerful evidence for the State or the Defendant depending on the nature of the relationship, and your lawyer should be ready to use this evidence or defend against it.

What’s the law on relationship evidence in family violence cases? 

Texas Code of Criminal Procedure 38.371 allows evidence that “testimony or evidence regarding the nature of the relationship between the actor and the alleged victim”. This is “subject to the Texas Rules of Evidence”, so there are still some rules about what comes in, but think of a relationship and the dynamic between two people. Is there a history of violence? Substance abuse? Lying? Cheating? Emotional abuse? These are all areas where you could find either a motive for an assault or a history of aggressive behavior for the Defendant. Or the defense could present a motive to fabricate a claim or a history of violent behavior by the complaining witness.

You know what’s weird with spam calls? When it shows your own cell phone number. I got a few of those for “extended car warranty” calls and I picked up the first time (I’m not sure why. Did I think I was trying to call myself?). Technology now allows people to spoof their phone number and have it appear as any number on your called ID (including your own number). Texas has now made that illegal, but I’m not sure how this would actually be prosecuted unless the caller and victims are all in Texas.

So what’s the law on phony caller ID? Glad you asked.

Sec. 33A.051. FALSE CALLER IDENTIFICATION INFORMATION DISPLAY.

Everyone hates credit card skimmers, but prosecutors had a problem under the old law for prosecuting fake credit cards etc, you required contacting each person who had their information stolen and getting them to trial if necessary. Getting dozens of credit-card victims to testify was a logistical nightmare for prosecutors, and so the legislature passed a new law to make it easier to prosecute people for possessing stolen credit card information.

The new law creates a “rebuttable presumption” that if you possess 5 or more stolen credit numbers, or counterfeit credit cards, you are doing so without the permission of the account holder. What’s a rebuttable presumption? It means what it sounds like. It shifts the burden to the defendant to show they had permission and lets the State off the hook from contacting all the people on the phony credit cards.

Let’s look at the statute-

Texas passed a new law criminalizing indecent assault. What is an indecent assault? It sounds like what used to be called “groping”, it takes something that would have a Class C Assault for “unwanted contact” and raises it to a Class A Misdemeanor.

Sec. 22.012. INDECENT ASSAULT. (a) A person commits an offense if, without the other person’s consent and with the intent to arouse or gratify the sexual desire of any person, the person

(1) touches the anus, breast, or any part of the genitals of another person;

What happens if I get another DWI? 

The Texas Penal Code allows for the state to enhance a DWI with each DWI you are convicted of. For example, if you have been previously convicted of DWI, which was a class B misdemeanor and you are arrested for a 2nd DWI, the state can bump that charge to a DWI 2nd, raising your punishment to a class A misdemeanor. 

When we have clients call to inquire for DWI, one of the first questions we ask, is have you been convicted of DWI before? At times, the answer is “well yes, but that was like 15 years ago.” Well, unfortunately, that doesn’t matter. Now, after the 2005 legislature, all DWI’s can be used to enhance your case, no matter how long ago you were convicted. 

Have you been arrested in Kaufman County? Did the Forney Police pull you over and find your weed stash? Has an investigator with the Terrell Police Department called to speak with you?

If so, you need a criminal defense lawyer, and you should call Guest and Gray. Guest and Gray is based in Forney, Texas. We are the only local law firm with a team of defense lawyers to assist you. We have 4 defense lawyers, including three former felony prosecutors. We take the toughest cases and get the best results.

The criminal defense team is lead by Robert Guest, former Chief Misdemeanor Prosecutor for Kaufman County, and former Kaufman County Bar President. We also have Jose Noriega, former Dallas Assistant District Attorney. Jose speaks Spanish and has years of trial and plea negotiation experience. Jerry Tidwell is a former Collin County felony prosecutor, and probably has the most felony trial experience at the firm. Candice Hughes used to work for the Rockwall County District Attorney, and now handles many of our family violence cases.

If two random strangers are to get into a fight, it is only assault, not assault family violence. But, when you allegedly assault a family member, as defined in the Texas Family Code Section 71, family violence attaches. Texas Family Code Section 71 defines a family member to include anyone in a dating relationship, individuals related by consanguinity or affinity, former spouses, parents of the same child without the regard as to whether you live together or not, a member of your household, this includes anyone living in your home, whether you are related or not. 

Guns. 

First, we are in Texas, so let’s start with guns. If your lawyer works out a deal with the prosecutor and you are to get what is called “deferred probation” you will not be able to possess a firearm during the time of that probation, this is for a misdemeanor or felony. If your deferred probation is for 18 months, then 18 months of no guns. If you are put on straight probation for assault family violence, misdemeanor or felony, then by law, you can never possess a firearm for the remainder of your life. 

In Texas a Defendant has the right to make a statement before a sentence is imposed. This common law right of allocution is now found in the Code of Criminal Procedure Section 42.07, which instructs the Judge to ask the Defendant “whether he has anything to say why the sentence should not be imposed against him.” When this happens, most Defendants don’t say anything. Their arguments have been made already by defense counsel, evidence has been submitted through a PSI or other witnesses, or there is a plea bargain and the Defendant knows what sentence to expect.

However, sometimes a Defendant is being sentenced without an agreement and might want one last chance to speak before the Judge pronounces sentence. If the Judge forgets to ask a Defendant if he has anything to say, and pronounces a sentence anyway, the law in Texas requires that a Defendant object or forever waive his right to allocution. Now this is not an uncommon approach. Texas appellate courts have been tilting the scales in favor of the State for a while now. We convict scores of innocent people in Texas for a reason, it’s easy to do so here. One way in which appellate courts bend over backwards to uphold convictions is by saying the Defendant “waived error”, and actually wanted the thing they are now objecting to, to happen.

For example, if you are in front the Judge and she is about to sentence you, and she forgets to ask you if you have anything to say, your lawyer has to object, and point out that this Judge, who has your life in her hands, has made a mistake, and to please let the Defendant speak before you decide if he goest to prison or not. That’s a risky move to make. Judges are people, and they don’t like being corrected or objected to.