Divorce Warfare: A Weaponization of the Law

Divorce Warfare

Understanding Family Assault Cases

In order to be found guilty of assaulting a family member, the State of Texas must prove certain factors to a jury beyond a reasonable doubt. They must prove that; on or about a certain date; In Harris County, Texas; The defendant did one of three things:

  1. intentionally, knowingly, or recklessly caused bodily injury to another, including the person’s spouse;
  2. intentionally or knowingly threatened another with imminent bodily injury, including the person’s spouse; OR
  3. intentionally or knowingly caused physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

If the State of Texas is able to prove these things to a jury beyond a reasonable doubt, the resulting conviction may lead to a Class A Misdemeanor conviction, carrying a range of punishment of up to a year in the county jail and up to a $4,000 fine.

However these cases can quickly become a Third Degree Felony, carrying a punishment range of up to 10 years with the Texas Department of Criminal Justice, if the defendant has a prior conviction for assaulting a family member.

Harris County’s Domestic Violence Policy: Zero Tolerance

The Harris County District Attorney’s Office has a zero tolerance policy when dealing with domestic violence cases. This results in many cases being pursued against innocent defendants based on incomplete and hurried investigations.

The Federal Domestic Violence Policy: War

The federal government has declared, among its many declarations of war, a war on domestic violence. They have given the states millions of dollars to prosecute family violence cases, and want results for the money they’ve spent. This leads to many needless prosecutions, where the only goal of the prosecutor is winning a conviction in a case, as opposed to seeking justice.

The No Drop Policy

Throughout the years, and dozens of domestic violence trials, I’ve seen many simple and heated arguments turned into full blown arrests and prosecutions. The District Attorney’s office in Harris County has a “no drop” policy for family violence cases, meaning the alleged victim has no say with what happens to the prosecution, and at times, have been threatened with prosecutions themselves for the filing of a false police report or perjury if they hint at the potential of a recantation.

Texas’ Family Assault Prosecution: Extra-Constitutional

The State of Texas, in its overzealous efforts to prosecute Defendants, has suspended the Sixth Amendment right to confront witnesses, as well as Article 1 Section 10 of the Texas Constitution, which states that a citizen charged with a crime has a right to confront and cross examine the witness making the accusation. The unfortunate result of this is that, many times, a weak family violence case, being handled by an unskilled attorney, will still result in a victory for the State of Texas.

Winless Wars & Collateral Damage

All notions of fair play have been suspended and ignored by Texas court’s in an attempt to wage a winless war on domestic violence. This results in many innocent defendants being convicted of a crime that carries lifelong consequences.

For instance, if you’re convicted of family violence, you lose the right to bear arms. You lose the right to have your record expunged or sealed (taken out of public eye after successful filing of a nondisclosure or expunction), even after a successful completion of deferred adjudication. Meaning that even without a final conviction, an employer or educator can still see that you were arrested and charged with family violence. In some ways, domestic violence cases can be treated even more harshly than a murder. They are considered a crime of moral turpitude carrying a social stigma on par with crimes such as prostitution, indecent exposure, sexual assault, and theft.

Divorce Warfare & Texas’ Family Code; A Bad Combination

CZE# 2044514 – Terroristic Threat – Not Guilty – 11/10/15
CZE# 2024391 – Deadly Conduct – Dismissed

In one of my more memorable Family Violence cases, my client had been in a troubled marriage for a few years, and both he and his wife were unhappy. His wife would hint at divorce, start arguments, and even hinted that she was carrying on a new relationship with one of my client’s former best friends.

On the night of my client’s arrest, his estranged wife had trashed the house that the two were still living in. When she saw him pull into the driveway, she called the police and told the 911 operator that she had been beaten and threatened with a pistol by her husband.

My client was in the middle of questioning his wife as to why the furniture was in disarray when HPD along with deputies from the Harris County Sheriff’s Office arrived and started pounding on the door. Upon opening the door, my client was immediately handcuffed and without listening to anything he had to say, put into the back of a patrol car.

Upon questioning the wife, she hysterically and tearfully told the officers that they had been arguing, that he had pushed her onto the bed, and then onto the floor, and in case that wasn’t enough for an arrest, she untruthfully stated that he had waived a gun around, though not pointed it at her.

That omission was important, because if she had claimed he had pointed the gun at her, he would have been charged with aggravated assault, an offense which carries a penalty of 2-20 years in prison.

When my client was finally given a chance to give his side of the story, he truthfully told the officers he did nothing wrong, and upon completing his short, brief, statement, was arrested and transported to the Harris County Jail.

Unlike most of the Family Violence cases I’ve handled over the years, the wife’s accusations were especially heinous, in that she openly lied, perjuring herself to gain advantage in a lawsuit for divorce and property division. It was the fact that she filed for divorce that her case was weakened. Had she waited until after my client’s case had been disposed of, it could not be used against her in cross-examination.

The case at hand evolved over a year, and went from an initial investigation of domestic violence to a charge of deadly conduct. After 9 months or so, my client was becoming worn out, which is often the end result if you wish to fight your case. It will typically take countless resets and long hours to just get your day in court. Even getting into the courthouse can be an ordeal, as the line is often wrapped a couple hundred yards down the street, almost passing my own office. When you do get inside, the metal detectors are more sensitive than those at the airport, requiring you to take off your shoes and open all bags. This is why I always advise my clients to arrive at least an hour ahead of docket call.

After 12 months of fighting this case, my client’s day for trial arrived and we proceeded to pick a jury. During cross examination of the complainant/wife/alleged victim, I was able to delve into the divorce proceedings, and allow the jury to see the real reason she was making these accusations.

A divorce case against a husband will be much stronger if the wife can put on evidence that her husband was convicted of assaulting her.

I was also able to get friends of the couple to testify on my client’s behalf. Stating that he was the calm and collected one of the relationship, and never indicated any violent or threatening tendencies. The jury took notice of this during deliberations, as well as the divorce and extramarital affair with a close friend of both. The jury deliberated less than an hour when the foreman looked my client in the eye and told him “Not Guilty”.

Divorce Warfare & Family Violence Statutes; A Bad Combination