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  • Brian Foley

Montgomery County Criminal Defense Attorney - Assault Investigations

Montgomery County Criminal Defense Attorney - Brian Foley - Board Certified in Criminal Law.


One of the most common types of crimes investigated is Assault. Assault is classified as an offense against the person under Chapter 22 of the Texas Penal Code. On the low end of the range of punishment Assault could be classified as "Offensive Contact" and is punishable by a fine of up to $500. This is called a Class C Assault by contact and is prosecuted in Justice of the Peace Courts and Municipal Courts across Texas.


The next highest category of Assault is Assault Causing Bodily Injury. Bodily injury means physical pain, illness, or any impairment of physical condition. This means that for Assault Bodily Injury Class A misdemeanor then the injury could be as little as a scratch or a punch in the stomach which hurts but does not leave a mark.


Matters are complicated when a family or dating relationship is involved. This is because even a class C misdemeanor family violence conviction could be used to enhance a future bodily injury assault against a family member to a Third Degree Felony.


WHAT HAPPENS IN AN ASSAULT FAMILY MEMBER INVESTIGATION?


  1. The police are normally dispatched there due to a 911 call. This often occurs at a private residence. Typically the 911 caller is the alleged victim. However sometimes a third party like a neighbor or child will make the phone call to police. The 911 call is not subject to the confrontation clause of the 6th amendment because there is an ongoing emergency at the time of the 911 call. This has been deemed to be non-testimonial and subject to admission by the court over a hearsay objection if it is also an excited utterance.

  2. When the police arrive they are attempting to separate the parties, prevent future violence. Officers generally listen to the version of events from the defendant, victim, and bystander witnesses if any are present.

  3. The police will probably be recording the interaction with the victim and defendant with a body camera. Prosecutors look at the credibility of the story told by the victim and other witnesses paying attention to tone of voice, consistency, and believability of the witnesses' version of events. These videos can be played at a trial to impeach their credibility.

  4. The police will take photos of the alleged victim and any part of her body that is alleged to have marks. The police will also typically photograph the hands of the defendant and victim as well so that they may capture photo evidence of defensive or offensive wounds. A defensive wound is a wound you receive when you are defending yourself against the attack of another person and could include scratches and other marks.

  5. Request and Emergency Protective Order. - The officer may also request that a protective order be put in place. This prevents offensive contact and co-habitation for a period of 61 days unless otherwise specified but in no event longer than 91 days. Bond Conditions may be required throughout the case.

Police can become very one track minded when they are investigating a family violence offense. There may be an assumption by police that the defendant is guilty which can allow them to ignore evidence tending to exonerate the individual accused of the offense. For example if the person listed as the defendant is not present at the scene the officer will only get one side of the story. Proper police investigation should include an attempt to get the other side of the story from the Defendant.


It is rare for the arresting officer to do much more than a few hours of investigation before making an arrest in a Family Violence case. In some cases a prosecutors office may approve a warrantless arrest for Assault under Chapter 14 of the Texas Code of Criminal Procedure.


Art. 14.03. AUTHORITY OF PEACE OFFICERS.  (a)  Any peace officer may arrest, without warrant:
(1)  persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony, violation of Title 9, Chapter 42, Penal Code, breach of the peace, or offense under Section 49.02, Penal Code, or threaten, or are about to commit some offense against the laws;
(2)  persons who the peace officer has probable cause to believe have committed an assault resulting in bodily injury to another person and the peace officer has probable cause to believe that there is danger of further bodily injury to that person;
(3)  persons who the peace officer has probable cause to believe have committed an offense defined by Section 25.07, Penal Code, if the offense is not committed in the presence of the peace officer;
(4)  persons who the peace officer has probable cause to believe have committed an offense involving family violence;
(5)  persons who the peace officer has probable cause to believe have prevented or interfered with an individual's ability to place a telephone call in an emergency, as defined by Section 42.062(d), Penal Code, if the offense is not committed in the presence of the peace officer; or
(6)  a person who makes a statement to the peace officer that would be admissible against the person under Article 38.21 and establishes probable cause to believe that the person has committed a felony.

The prosecutor's office in Montgomery County Domestic Violence Court will call each victim before they go to court on the case for the first time. This extends the investigation time by asking the victim to tell the District Attorney's office what restitution if any they are owed, what type punishment they are hoping, and finally the opportunity to execute an affidavit of non-prosecution.


If you or a loved one is currently under investigation or being prosecuted for Assault contact an Attorney in your area to get help.


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