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Continuous Family Violence

Apr 25
Love7
Violation Protective Order Texas Wagner

What is “Threatening or Harassing” for a Protective Order Violation?

By Domestic Violence

Violation Protective Order Texas WagnerFamily violence stories permeate the news, as domestic violence-related cases continue to fill both Texas criminal and family court dockets alike. The Texas Council On Family Violence reports that one in three Texans will experience domestic violence in their lifetimes. (Texas Council On Family Violence, accessed 23 April 2018.) In 2016, the National Domestic Violence Hotline received over 17,000 outcries for help. A societal scourge that is found across all racial, socio-economic, financial, educational and religious stratifications, domestic violence continues to wreck families and ruin the lives of victims. What protections exist in Texas for victims? What behaviors rise to the level to trigger a protective order issued by the courts? What happens when a protective order is violated? In Wagner v. State, the Texas Court of Criminal Appeals recently considered whether numerous texts and emails can rise to the level of harassing behavior and violate a protective order.

Read the case here: Wagner v State (Tex. Crim. App 2018)

Domestic Violence Leads to a Protective Order for Victim

One month after separating from her abusive husband, LW was granted an Order of Protection from a district court. Based on the testimony presented, the district court found that not only had family violence occurred, it was likely to occur again in the foreseeable future. In her affidavit to the court, LW described an array of abusive behaviors including yelling and screaming, breaking objects around the house, destroying a car with a hammer, locking LW out of her own house, among other “strange and violent behavior.”

The Protective Order restricted her ex-spouse, Paul-Henri Wagner, from a laundry-list of communications and activities ranging from direct communication by phone to physical presence within 500 feet of LW’s residence. Specifically, Paul-Henri was prohibited from communication made to LW in a “threatening or harassing manner.” One week after the protective order was issued, Paul-Henri and LW sent text messages and email to each other, regarding financial and logistical obligations to their children. Eventually, LW told Paul-Henri to communicate via email only, asking him to “respect her wishes” by not sending her text messages. Shortly thereafter, Paul-Henri began sending emails professing his longing for reconciliation. LW told him to stop. Paul-Henri started sending text messages again—a dozen in fact. Soon the communication became a mix of texts and emails professing his undying love for LW. After a few days of the messages, LW told Paul-Henri to stop sending texts. Paul-Henri barraged LW with emails begging for reconciliation. Paul-Henri even went so far as to drag church members to contact LW for reconciliation.

Based on his incessant communications with LW, Paul-Henri was charged with a Class A misdemeanor Violation of a Protective Order for violating Texas Penal Code Section 25.07(a)(2), which provides (in relevant part:

(a) A person commits an offense if, in violation of a condition of bond set in a family violence case related to the safety of the victim, the person knowingly or intentionally:
(2) communicates:
(A) directly with a protected individual or a member of the family or household in a threatening or harassing manner;

Ultimately, a jury convicted Paul-Henri for violating the protective order, finding that he communicated with LW “in a harassing manner.”

Wagner Appeals the Violation of Protective Order Conviction | Void for Vagueness Argument

On direct appeal, Paul-Henri challenged the constitutionality of the Texas Penal Code, stating that §25.07(a)(2)(A) is overbroad and vague. The court of appeals rejected Paul-Henri’s argument, stating:

(1) that the term “harass” can be defined using a standard dictionary,
(2) that harassment is not protected speech under the First Amendment, and
(3) that the statute is not vague because Paul-Henri either knew or should have known that his repeated communications with LW would eventually pester her.

Paul-Henri then appealed to the Texas Court of Criminal Appeals, which granted his petition for discretionary review to determine the constitutionality of §25.07(a)(2)(A).

When do Communications Become “Harassing” Under the Law? | The Court of Criminal Appeals Weighs In

So when do multiple emails and texts become “harassment” in violation of a protective order language or the Penal Code (or do we even know)? The CCA held that the Penal Code was not unconstitutionally vague on this point and explained that:

“a person communicates in a harassing manner if the…method by which he communicates…would persistently disturb, bother continually, or pester another person…[Such behavior] necessarily requires multiple events of harassing communication…[and would be] troubling [to] someone with frequent…requests or interruptions.”

Here, Paul-Henri repeatedly contacted LW, even after she demanded that he stop. The court reasoned that the average person, with average intelligence, would conclude that his behavior was bothersome, and that he should have stopped. However, Paul-Henri did not stop his efforts to contact his victim. Furthermore, added the CCA, “the First Amendment does not prohibit a court from imposing reasonable restrictions on an abuser’s speech for the protection of his victim.” For those who have protective orders restricting communication, yes, multiple texts and emails may rise to the level of “harassing” behavior in Texas. Those who have been served protective orders need to understand the restrictions placed upon them in their orders and abide accordingly.

Family and intimate partner violence follows escalating patterns of behavior that are predictable and preventable. Understanding the facts about domestic violence is the first step in supporting victims in their safety planning and in holding abusers accountable for their actions.

Jun 17
Love5

Tarrant County’s “No Drop” Policy on Family Violence Cases

By Domestic Violence

How Do I Drop a Family Violence Case in Tarrant County?

In our practice as criminal defense lawyers, we often get calls about Family Violence (Assault of a Family Member) cases. These cases typically result from an argument that got out of hand, wherein one party called the police to help diffuse the situation, not knowing that the police would take someone to jail. Many times there seems to be a bit of confusion regarding whether the “victim” of the alleged assault can “drop” the case after the other person is arrested and charged with Family Violence.

In Fort Worth, the Tarrant County District Attorney’s office has a “No-Drop Policy” on Family Violence cases. The No Drop Policy basically means is that once the case is filed with the District Attorney’s office, it is NOT the alleged victim’s choice whether to drop the charges. It is entirely in the prosecutor’s discretion how to handle the case if the victim does not want to go forward.

Despite the No Drop Policy, there are things that an alleged victim can do to express his or her desire that the case not be prosecuted. This begins with the Alternatives Class offered through Safe Haven. Before the District Attorney’s office will allow an alleged victim to sign an Affidavit of Non-Prosecution, they require that the alleged victim attend this 4-hour class.

After the alleged victim attends the Alternatives Class at Safe Haven, he or she may then elect to speak with the victim coordinator at the District Attorney’s Office. In this interview, the alleged victim will be allowed to talk with the victim coordinator and tell them why they believe the case should not be prosecuted. This is also the time in which the alleged victim will sign the Affidavit of Non-Prosecution.

These steps can go a long way in achieving a favorable outcome on domestic violence cases. If you or a loved one needs help navigating these options, please call us today. We handle Family Violence cases on a daily basis and have a proven track record of good results. Some helpful numbers are contained below.

Alternatives Class at Safe Haven – (817) 536-5496

Tarrant County Victim Coordinator – (817) 884-3535


Barnett Howard & Williams PLLC
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Feb 02
Love2

Unanimous Verdict Not Required for Continuous Family Violence

By Domestic Violence

Domestic Violence Case Law Update.  Continuous Family Violence.

Except for the military context, you’ve always heard that a jury verdict must be unanimous, right?  Well, not exactly.

Recently, the Sixth Court of Appeals (Texarkana) held that a jury does not have to unanimously agree upon which assaults occurred in order to convict a defendant for Continuous Family Violence, as long as the jury agrees that the defendant committed at least two assaults within the time allotted by statute. Under section 25.11 of the Texas Penal Code, a person who assaults a family member two or more times within twelve months commits Continuous Family Violence. The relevant statutes provides:

(a) A person commits an offense if, during a period that is 12 months or less in duration, the person two or more times engages in conduct that constitutes an offense under Section 22.01(a)(1) against another person or persons whose relationship to or association with the defendant is described by Section 71. 0021(b), 71.003, or 71.005, Family Code.

(b) If the jury is the trier of fact, members of the jury are not required to agree unanimously on the specific conduct in which the defendant engaged that constituted an offense under Section 22.01(a)(1) against the person or persons described by Subsection (a) or the exact date when that conduct occurred. The jury must agree unanimously that the defendant, during a period that is 12 months or less in duration, two or more times engaged in conduct that constituted an offense under Section 22.01(a)(1) against the person or persons described by Subsection (a).

In Hill v. State, the appellant was charged with Continuous Family Violence after the State alleged that the appellant assaulted his girlfriend three times on two different dates within a twelve-month period. The jury returned a guilty verdict, and on appeal, the appellant contended that the trial court erred when it did not instruct the jury that in order to convict, the jury must unanimously agree upon which assaults transpired. Thus, of the possible assaults that may have happened, the appellant argued that some of the jurors cannot find sufficient evidence for one assault and the other jurors find sufficient evidence for another because “it is axiomatic that Texas law requires a unanimous verdict in a felony case.”

Nevertheless, the Court rejected this reasoning. The State advocated following the way of the Continuous Sexual Abuse statute and allow jurors to not unanimously agree on which assaults occurred, so long as the jury agrees beyond a reasonable doubt that at least two assaults did occur within twelve months of each other. Adopting this rationale, the Court ultimately held, “In the circumstances of construing the statute under examination here, it is sufficient to allow a jury to select from a menu of possible bad acts and agree that a defendant committed two of them without the concomitant requirement that the jurors be shown to all concur as to which of the acts did occur.”

As such, as long as a jury unanimously agrees that a defendant assaulted a family member at least twice within twelve months, it does not need to agree upon which assaults actually occurred.  (Note: this same logic applies to continuous sexual abuse cases as well.)