Aggravated Assault w/deadly weapon - Texas

[mockme2]

What is the name of your state? This case is being prosecuted in the great state of Texas.

A man with no prior record of any type, after 18 years of marriage never laying a hand on her or anyone, beat his wife what the DA calls severely. The charges are Aggravated Assault with deadly weapon - as he used an empty gun to threaten her. The injuries were not so severe as to require medical treatment of any type - bruises only.

The husband seemed to be having a breakdown of some sort. The wife, begged husband to seek treatment - he refused and in desperation she called Police and filed a report hoping to force him to get treatment. She filled out a written statement of the incident and it is notarized. The Police also have many photographs of the wife's bruises.

Before the Police got around to arresting the husband, the wife begged him to seek medical treatment. The husband finally agreed and went to County Mental Health Services, described his symptoms to conselors and doctors and was committed to State Mental Hospital for treatment. He was diagnosed Bi-Polar and put on medication. Before the hospital was actually ready to release him, the Police came and took him to jail. While he was in the hospital, his employers fired him... so there is no income. A court appointed attorney has been assigned to the case. He had the husband claim NOT GUILTY.

Since the husband did get treatment as the wife desired, she filed an Affadavit of Non-Prosecution - requesting the DA to drop charges. Her goal from the beginning of this ugly incident was to repair her husband and their relationship. The DA refuses to drop charges. The Court appointed attorney appears to be doing nothing in the way of a defense. His advice is for the wife to "disappear" and not attend the hearing or be available to be subpeonaed. The attorney seems to think that without the actual witness the prosecution has nothing.

We are afraid to trust this opinion. The DA does have signed notarized statement and photos of the wife and a statement from the husband admitting he did beat her up (but denying the weapon).

SO - question - is this true??? Without the wife, in person - will this case be dropped? Or will the wife's statement and photos still be admissable evidence and enough to convict him? DOES Texas Law require her presence?

 

[CdwJava]

The husband seemed to be having a breakdown of some sort. The wife, begged husband to seek treatment - he refused and in desperation she called Police and filed a report hoping to force him to get treatment. She filled out a written statement of the incident and it is notarized. The Police also have many photographs of the wife's bruises.

"Treatment"? He beat his wife severely and used a gun in the commission of the act! This needs PRISON not "treatment". Prior record or not, a person doesn't just happen to go off and do something like this. Unless he is diagnozed with a suddenly developed mental disease, it is likely that the "no prior record" means that he simply has not been caught before ... and it hasn't gotten this bad.

He was diagnosed Bi-Polar and put on medication. Before the hospital was actually ready to release him, the Police came and took him to jail. While he was in the hospital, his employers fired him... so there is no income. A court appointed attorney has been assigned to the case. He had the husband claim NOT GUILTY.

Of course ... he is likely going to assert that he was mentally ill at the time of the assault. It MIGHT work. Maybe.

Since the husband did get treatment as the wife desired, she filed an Affadavit of Non-Prosecution - requesting the DA to drop charges. Her goal from the beginning of this ugly incident was to repair her husband and their relationship. The DA refuses to drop charges.

Of course not! Something this severe WIL be prosecuted by the state.

More than 75% of all DV victims recant their stories and change their minds - it is the nature of DV (Domestic Violence), and thus the state adopts prosecution for the case even when the victim requests the charges be dropped. Plus, since this is a violent felony, the state has a vested interest in protecting both the victim and society from any future acts by the suspect.

The Court appointed attorney appears to be doing nothing in the way of a defense.

There may not be a whole lot TO do besides try a mental illness defense. But, it may not be that simple in TX to raise that defense.

His advice is for the wife to "disappear" and not attend the hearing or be available to be subpeonaed.

This attorney could probably be disbarred if he actually made THAT recommendation.

The attorney seems to think that without the actual witness the prosecution has nothing.

I think the attorney is wrong. Unless the law in TX requires her testimony, they can probably make the case without her. But, if she fails to show up when subpoeanaed, she'll be arrested for failing to heed the subpoena and then the court will compel her testimony.

So unless she wants to be in jail also, she may want to reconsider NOT showing in court.

We are afraid to trust this opinion. The DA does have signed notarized statement and photos of the wife and a statement from the husband admitting he did beat her up (but denying the weapon).

Sounds like a strong case.

SO - question - is this true??? Without the wife, in person - will this case be dropped? Or will the wife's statement and photos still be admissable evidence and enough to convict him?

No, it won't be dropped. Though it might be continued until the wife can be arrested.

- carl

 

[mockme2]

Carl - a mite harsh and quite discouraging. I understand that cases such as this are a part of the cycle of battery and will most likely be repeated WITHOUT INTERVENTION. And you are correct - this beating did not just come "out of the blue". There was a slow build up of battery culminating in the beating. I am not sure if I believe the Bi-Polar diagnosis BUT something was wrong with my husband's head. He was not a batterer for sixteen years. He was actually quite kind, caring and loving before the severe blow to his head. After the blow to his head he fell into a depression and began drinking. I do not accept alcohol as an excuse. Actually there is NO excuse for what he did to me. BUT I do have faith that the cycle of battery can be broken in some cases. Since he has been on medication... antidepressants and has totally stopped alcohol he has become more like the man I knew for the first sixteen years. I have faith that with counseling, medication and vigilance on my part - he will NOT begin the cycle of battery again. Prison is not what he or I need. I understand that many women who are battered expect miracles... I do not expect miracles but I do have faith.

Okay... what about Crawford vs Washington - Supreme Court March 2004 - upholds the right of defendant to face accuser? What about marital privilege?? Can Texas law presume to ignore the Supreme Court of the United States???

 

[stealth2]

Your problem is that the STATE is the accuser at this point. They have plenty of evidence - photos, his statement, the police report, etc. Unless TX requires your appearance.

 

[rmet4nzkx]

Wooah,
YOU forgot a significant fact, HEAD INJURY.

There is a definate corrolation between TBI and batterers, this is due to a dysregulation in executive function and this is entirely a different situation than a classical DV cycle of violence with an entirely different prognosis for treatment, otherwise the prognosis for DV is extreemy poor, thus the prosecution. This is also a different issue and defense than mental illness defense. Please note that 60% of batters have a significant history of TBI, that doesn't mean that 60% have that as an excuse for their behavior as there are many brain functions affected by TBI and only some may provoke hostile behavior.
A feature of impaired executive function is the inability to control emotions-actions thus changes in personality and behavior and the inability of the person to recognize that they have a problem and reluctance to seek treatment. Even identifying the problem can make a difference in relationships and how both people react.

Ask that your husband be evaluated by a neuropsychologist to confirm the extent of the injury and prgonosis for treatment. Keeping it in the court system may be the only way to get him to treatment.

It is possible that after a diagnosis, that you husband might have a chance to have his job restored and or a rehabilation program, he may qualify for services to head injured patients and or disability.

Here are 2 links for help:
http://www.tdh.state.tx.us/braininjury/tbi_proj.htm
http://www.biatx.org/whatis.asp

 

[CdwJava]

Okay... what about Crawford vs Washington - Supreme Court March 2004 - upholds the right of defendant to face accuser? What about marital privilege?? Can Texas law presume to ignore the Supreme Court of the United States???

If you disappear, you can be arrested and forced to go to court. Spusal privelege does NOT apply when you are the victim of DV.

Also, Crawford would not apply if they do not call her as a witness. They may not be able to use all of your statements, but they can sure use the call to the police, the medical evidence, and statements of other witnesses including medical staff. They likely don't NEED your testimony.

Now, if you are willing to join him in jail, then didge the subpoena. But that won't help him - it will just hurt you even more.

You can't help him by allowing him to dodge responsibility for his actions.

- Carl