Continuous Family Violence - Third Degree Felony
It appears that our office is the first to receive a case involving the new Continuous Family Violence statute under Texas Penal Code ยง 25.11. This statute makes it a Third Degree Felony for anyone to engage in conduct that constitutes an Assault two or more times against a Family Member during a period that is 12 months or less in duration. The family member need not be the same in each occurrence.
This statute is ripe for attack. Since the Penal Code already allows for enhancement to a Third Degree Felony based on a prior Family Violence conviction, this new statute allows for enhancement based on prior unadjudicated conduct. The first line of attack is to scrutinize the prior conduct. The prior conduct may not legally meet the elements for an "Assault" under the Penal Code. Threats alone don't count. Neither would accidental injuries. Where cases are being assigned to the District Court, an attack on the court's jurisdiction to hear the case might be appropriate. The prior conduct that is alleged to constitute an Assault would be an element of the state's case. At trial, the state would need to prove two Assaults beyond a reasonable doubt. With the possibility of multiple complainants, the state's difficulties are compounded.
We have certainly seen the case where a client is placed on deferred prosecution for a misdemeanor family violence assault only to be charged with a subsequent family violence assault within a 12 month period. The state should not be allowed to automatically enhance a subsequent assault by using the earlier assault as prior conduct. The earlier assault may have been deferred for lack of probable cause or witness problems. There may have been a strong self-defense claim or an assertion of police misconduct. We would litigate any attempt by the state to use a prior Assault that had been disposed of through a deferred prosecution agreement.
The same is true about Protective Orders which allege prior Family violence. Many of the allegations used to support a protective order are untested assertions. Even in a contested hearing, a protective order's findings are made based on a lower standard of proof than that required in a criminal case.
We would also challenge the lack of notice in the indictment for failing to specify the particular conduct and the dates this conduct is alleged to have occurred. While under the statute the jury need not be unanimous as to the "specific conduct" or the "exact date" when that prior conduct occurred, the defendant should be allowed reasonable notice to defend his case.
As a final note, the language of this statute seems to borrow heavily from the Continuous Sexual Abuse statute that the legislature passed in the last legislative session. Not all of this borrowed language seems to fit or necessarily make sense.
This statute is ripe for attack. Since the Penal Code already allows for enhancement to a Third Degree Felony based on a prior Family Violence conviction, this new statute allows for enhancement based on prior unadjudicated conduct. The first line of attack is to scrutinize the prior conduct. The prior conduct may not legally meet the elements for an "Assault" under the Penal Code. Threats alone don't count. Neither would accidental injuries. Where cases are being assigned to the District Court, an attack on the court's jurisdiction to hear the case might be appropriate. The prior conduct that is alleged to constitute an Assault would be an element of the state's case. At trial, the state would need to prove two Assaults beyond a reasonable doubt. With the possibility of multiple complainants, the state's difficulties are compounded.
We have certainly seen the case where a client is placed on deferred prosecution for a misdemeanor family violence assault only to be charged with a subsequent family violence assault within a 12 month period. The state should not be allowed to automatically enhance a subsequent assault by using the earlier assault as prior conduct. The earlier assault may have been deferred for lack of probable cause or witness problems. There may have been a strong self-defense claim or an assertion of police misconduct. We would litigate any attempt by the state to use a prior Assault that had been disposed of through a deferred prosecution agreement.
The same is true about Protective Orders which allege prior Family violence. Many of the allegations used to support a protective order are untested assertions. Even in a contested hearing, a protective order's findings are made based on a lower standard of proof than that required in a criminal case.
We would also challenge the lack of notice in the indictment for failing to specify the particular conduct and the dates this conduct is alleged to have occurred. While under the statute the jury need not be unanimous as to the "specific conduct" or the "exact date" when that prior conduct occurred, the defendant should be allowed reasonable notice to defend his case.
As a final note, the language of this statute seems to borrow heavily from the Continuous Sexual Abuse statute that the legislature passed in the last legislative session. Not all of this borrowed language seems to fit or necessarily make sense.
posted by DAVID B. FRANK, ATTORNEY at 9:24 AM
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