My question involves criminal law for the state of: Texas
My husband and I got into an argument in July. He was threatening to kill himself, and was hanging halfway out the window of our upstairs apartment. I was pulling him from the window, and his shirt ripped and we both fell backwards. I was mad so I made a big deal about the fact that his hand had hit/landed on my leg and left a red mark. We were arguing so, of course, I used this to my advantage and accused him of hitting my leg and whined about the red mark even though it didn’t hurt, saying “oh so you’re gonna smack me on the leg now?” and he said “I'm sorry, I didn’t mean to.” My intention was just to make him direct his attention to something other than the window... I was desperate and angry. My neighbor called the police because he saw him hanging out the window.
The police officer came in and was questioning me. He asked if my husband had physically harmed me in any way. I said I just had a small red mark on my leg from where his hand had smacked me when I pulled him from the window. I probably used the wrong word “smacked.” I wouldn’t have even said anything if he hadn't asked. I thought he just had to ask to make sure no one was hurt... so I simply said "he kinda smacked me on the leg when I pulled him from the window", just with the intentions of letting the officer know that I was being honest with him. I didn’t think it would be any further assessed because I knew he didn’t do it on purpose. I was just too hysterical about the window situation and I was answering only the questions the police were asking me, no more and no less. I would have explained better if I would have known it was going to be taken in the wrong way. The cop then asked me to show him the mark, and I assumed he was just looking for the record to make sure I wasn’t actually injured. It was so small that I had to look for it, then said “I think this is it” when I saw a small red spot on my leg. Then he proceeded to take a picture of the mark. I asked him what the picture was for but the officer just simply said “I’ll be right back.” And before I knew it they had arrested my husband. I then told the officer that he didn’t mean to do it and that he wouldn’t ever hurt me. At that point I guess he just thought I was trying to take back my “complaint” for my husband’s sake and it was too late.
The cop went out and asked my husband if he had smacked me on the leg. My husband was under the impression that he was to blame for the incident, regardless if it was an accident or not, because it wouldn't have happened if he weren't hanging out the window - so he took responsibility for it. They asked him how hard he had hit me, and he said "not hard at all... if it even left a mark it's because she marks easily (which is VERY true)."
If I hadn't been in such a shocked/scared state of mind (the result of almost watching my husband fall to his death from a window due to an argument I started), then I would have definitely been thinking clearer and this misunderstanding would not have happened. Once I realized that the police thought he did it on purpose, I was trying to clarify that to them. I was so scared all I could get out was "he didn't mean to" and "he would never hurt me." I assume they just thought I was defending him and saying that "he didn't mean to hurt me, he just snapped." But I literally meant he DIDN'T MEAN TO.
I am filing an affidavit of non-prosecution next week.
Should I specifically say in the affidavit that I will testify on behalf of my husband?
Should I explain ALL of the above in the affidavit?
Is there anything I can say to the right person (possibly the DA himself?) to get this case dropped?
What are the chances of actually winning this case if it does go to court?
Will the arresting officer be in court & is there a chance he could have been recording me when he was questioning me? I'm worried that I might have said something the wrong way that would make the court believe that he actually hurt me, and then them think I am just trying to change my story.
My husband does not deserve to lose his job, go to jail or be convicted of something he did not do just because his wife couldn't speak up when she was scared or said the wrong thing... Our life could fall apart because of this, and I don't know what to do. Anyone have any advice on getting this case dropped or winning it?
Domestic Violence Charge Resulting from a Misunderstanding
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11-13-2013, 09:28 AMxmalbearxDomestic Violence Charge Resulting from a Misunderstanding
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11-13-2013, 01:29 PMMark2010Re: Domestic Violence Case, How Do We Win if There Was a Misunderstanding
Ok, now I will be hammered hard for telling this to you:
This is a typical case of Gestapo style police intrusion into a family's life
- In some states (like Texas) your husband may get a protective order which will prevent him from going home for a period of time. However, you may come and visit him at his residence if you whish.
- Stop talking to anyone else other than your husband's attorney. Unfortunately, he will need to hire one.
- Do not talk to the police or to the DA, the more information they have is the stronger case they will build against your husband and you.
- If charges will be filed against your husband (very likely) they will be sitting on it for a looooong time hoping he will plead guilty (talking about 12-18 months).
- Your husband MUST NOT plead guilty! The police report will accuse him of something LOT stronger than you actually said! He must not agree to any part of the offense report!
- Your husband's attorney can negotiate some resolution where your husband (if this is his first offense) may take some DV / anger management class and get the case dismissed completely.
- The case will be set to trial eventually where you must come and testify what happened. Unfortunately, your statement to the responding officers will be used against your husband but what truly happened is what you and your husband will testify.
- You do not have to take the subpoena when they try to drag you to court! Do not open the door when they try to serve you! Without you there is NO CASE!
- Even if you decide to go court a jury will be very reluctant to destroy an active marriage and will likely interpret the DA's attempt to get your husband convicted as an unnecessary intrusion and destruction of a marriage, a working entity! Strongly express your opinion that it was an accident and there was no physical fight between the 2 of you.
This is the typical case when people should have kept their mouth shut and not talk to the police. You always have the right to remain silent and not answer any questions! You opened the door to the police and our government to intrude and destroy your marriage and there will be nothing you can do about it! There is a fast growing number of people ending up in the same situation as you deeply regretting that they ever turned or said a single word to the police. This will soon result people not trusting and turning to the police when they should in fact! There are many thousands of women ending up in the same situation as the result of our good ol' VAWA which stripped you from your right to decide if you want to stay with your husband, which will cost you many thousands of dollars!
And I will be hammered for saying all these in a few minutes by the senior members of this site who will all know better than you but don't forget that a good chunk of them have a direct financial interest to have cases like this! -
11-13-2013, 01:43 PMDogmatiqueRe: Domestic Violence Case, How Do We Win if There Was a MisunderstandingQuote:
Quoting Mark2010
Oh really? https://www.oag.state.tx.us/victims/protective.shtml
At least this part is a definite option.Quote:
- Stop talking to anyone else other than your husband's attorney. Unfortunately, he will need to hire one.
Accident?! You're now advising the OP to break the law? Really?Quote:
- Do not talk to the police or to the DA, the more information they have is the stronger case they will build against your husband and you.
- If charges will be filed against your husband (very likely) they will be sitting on it for a looooong time hoping he will plead guilty (talking about 12-18 months).
- Your husband MUST NOT plead guilty! The police report will accuse him of something LOT stronger than you actually said! He must not agree to any part of the offense report!
- Your husband's attorney can negotiate some resolution where your husband (if this is his first offense) may take YDV / anger management class and get the case dismissed completely.
- The case will be set to trial eventually where you must come and testify what happened. Unfortunately, your statement to the responding officers will be used against your husband but what truly happened is what you and your husband will testify.
- You do not have to take the subpoena when they try to drag you to court! Do not open the door when they try to serve you! Without you there is NO CASE!
- Even if you decide to go court a jury will be very reluctant to destroy an active marriage and will likely interpret the DA's attempt to get your husband convicted as an unnecessary intrusion and destruction of a marriage, a working entity! Strongly express your opinion that it was an accident and there was no physical fight between the 2 of you.
And what a load of tripe that is.Quote:
This is the typical case when people should have kept their mouth shut and not talk to the police. You always have the right to remain silent and not answer any questions! You opened the door to the police and our government to intrude and destroy your marriage and there will be nothing you can do about it! There is a fast growing number of people ending up in the same situation as you deeply regretting that they ever turned or said a single word to the police. This will soon result people not trusting and turning to the police when they should in fact! There are many thousands of women ending up in the same situation as the result of our good ol' VAWA which stripped you from your right to decide if you want to stay with your husband, which will cost you many thousands of dollars!
Quote:
And I will be hammered for saying all these in a few minutes by the senior members of this site who will all know better than you but don't forget that a good chunk of them have a direct financial interest to have cases like this!
Oh really? Do explain. And by that, I mean PROVE your accusation or retract it and apologize
I'll wait. -
11-13-2013, 01:59 PMMark2010Re: Domestic Violence Case, How Do We Win if There Was a MisunderstandingForgot to mention that it will be just another piece of paper in the file until it actually ends up on trial where your husband's defense attorney can use it to weaken the case.Quote:
I am filing an affidavit of non-prosecution next week.
If you keep the marriage active and neither party files for divorce it'll also demonstrate that there is no violence in the marriage!
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As I said I do not communicate with you but to clarify:
The EPO (Emergency Protective Order) is issued without court hearing on behalf of the "victim" and in no way prohibit contact between the parties. If the victim wants a final protective order the victim must go to court.Quote:
So the OP CAN talk and visit her husband any time she whishes, talk to him any time she whishes! If you ask a criminal or family attorney he will tell you the same. The EPO does NOT prohibit contact between the parties!Quote:
(c) The magistrate in the order for emergency protection may
prohibit the arrested party from:
(1) committing:
(A) family violence or an assault on the person protected
under the order; or
(B) an act in furtherance of an offense under Section
42.072, Penal Code;
(2) communicating:
(A) directly with a member of the family or household or
with the person protected under the order in a threatening or
harassing manner; or
(B) a threat through any person to a member of the family or
household or to the person protected under the order;
(3) going to or near:
(A) the residence, place of employment, or business of a
member of the family or household or of the person protected under
the order; or
(B) the residence, child care facility, or school where a
child protected under the order resides or attends; or
And again, I was not responding to you but to the OP! -
11-13-2013, 06:35 PMmmmagiqueRe: Domestic Violence Case, How Do We Win if There Was a MisunderstandingYou are kidding, right? Do you have any idea how many intact marriages there are in the United States that does include violence? Staying together proves NOTHING.Quote:
Quoting Mark2010
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11-13-2013, 06:41 PMdrthyrdRe: Domestic Violence Case, How Do We Win if There Was a MisunderstandingLook, you were scared because you thought your husband might die, and angry that he would threaten suicide. That seems normal. And the fact you were injured bringing him back inside made you mad, and that is understandable. The neighbors called the police because a person was hanging out the window. I hope you can see that the neighbor's actions were understandable as well.Quote:
Quoting xmalbearx
I sincerely hope that your husband does not lose his job.Quote:
Quoting xmalbearx
In terms of being convicted for something he didn’t do, I hope that doesn’t happen as well. There are however, things he DID do that lead to your very minor injury and that could have lead to his death, yours or both. He may need to face the consequences for those actions. Considering that without intervention this is likely to get worse, and not just be a onetime event, is it possible that help might be a good thing?
Right, the type of police that have the audacity to respond to a person calling stating their neighbor is dangling out the window. Some nerve!Quote:
Quoting Mark2010
Actually, OP’s husband opened the window to the police….Quote:
Quoting Mark2010
The OP and her husband need to learn ways to handle their fights and/or his mental health that don’t lead to anyone hanging out the window. When her husband starts hanging out the window, neighbors and police tend to get curious, and people start to think outside intervention might benefit them.
What if next time the husband falls to his death? Or if OP is not strong enough to pull him back and they both fall out the window. This situation escalated and the government came in because they couldn’t handle it by themselves. -
11-14-2013, 07:27 AMviol8teRe: Domestic Violence Case, How Do We Win if There Was a Misunderstanding
To add: There is no indication as to what lead to what. Your husband was hanging out of the window. You acknowledge that you guys were arguing. You acknowledge that you were angry. It's odd that you were pulling him bakc from the window, but yet so angry that you would thresten him with accusations of a domestic right after showing sich great concern for his safety. That's putting him right back into harm's way if his mental state is as you say it was.
Not trying to question the validity of your account, but it sounds suspect. It makes it difficult for an attorney to buy your account of a misunderstanding. It was not a misunderstanding. It was an escalation that got way out of hand. As a result, those who witnessed the events felt compelled to call the police. Unfortunately for you two, the police saw some things that you confirmed justified an arrest. Your account sounds as if the red mark was from an intentional blow from your husband, calmer heads are now at work and you now feel that the punishment for his actions are too severe.
I'm not saying that is what happened, but being in DV for as many years as I have, I hope you can see why your version can lead to that assumption. -
11-14-2013, 08:46 AMxmalbearxRe: Domestic Violence Case, How Do We Win if There Was a MisunderstandingMy intention was to direct his attention from the window - it occurred to me that, if he had a reason to believe that he might have harmed me, maybe he would stop trying to kill himself and direct his attention to that. I was completely desperate at this point. It actually worked though... he apologized for accidentally hitting me and felt bad, then feeling like it was his fault for trying to jump out the window in the first place. This is why he admitted to the cops that yes, he did in fact hit me in the leg.Quote:
Quoting viol8te
This is my main concern, that I am going to leave out important details such as those and the jury will think I am just trying to protect him now. I also don't want it to look like I am trying to make up stories. Could this be considered "giving the police a false statement"? I didn't say anything untrue to the police, but I obviously didn't give enough detail either...
Also, if the jury doesn't believe me due to that assumption, is that disbelief enough "beyond a reasonable doubt" to convict him? -
11-14-2013, 11:48 AMviol8teRe: Domestic Violence Case, How Do We Win if There Was a Misunderstanding
How much money do you guys have to fight this? Cases that have merit(and this one has merit,) will often get a plea offer to a lesser offense or to a lighter sentence in order to move it along. The reality is, even if you two did not intend to have this violence interaction occur, it did anyway. Not because of an accident, but because of reckless behavior. That in itselfmakes it difficult to prove without going to trial. Going to trial is usually going to bring on contiuance dates and costly legal fees.
And my opinion is no, I don't believe that is enough to cast reasonable doubt. Too many DV arrests have similar stories. -
11-14-2013, 12:51 PMDogmatiqueRe: Domestic Violence Case, How Do We Win if There Was a MisunderstandingQuote:
Quoting Mark2010
I don't give a flying ferret fart if you aren't responding to me.
But I will indeed "jump" if someone is giving erroneous information and/or advising someone to do something that could end in legal trouble.
Can you spell "wishes", by the way? Your misspelling is rather cute actually.
You also seem a bit confused. Avoiding service? That's what you advised the OP to do. NOT smart. NOT good. COULD get the poor OP into trouble. And I have no idea why seem to think that if OP doesn't turn up, there'll be no case. And the marriage thing? Ridiculous.
OP, please ignore his post.
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(And which folks here have a vested financial interest? Do tell) -
11-14-2013, 01:39 PMjkRe: Domestic Violence Case, How Do We Win if There Was a Misunderstandingyou are wrongQuote:
The EPO (Emergency Protective Order) is issued without court hearing on behalf of the "victim" and in no way prohibit contact between the parties.
and you would be wrong. never heard of a bilateral order?Quote:
So the OP CAN talk and visit her husband any time she whishes, talk to him any time she whishes! If you ask a criminal or family attorney he will tell you the same. The EPO does NOT prohibit contact between the parties!
bear; please disregard mark2010 statements, or at least verify them with an actual attorney before even considering following any of them
The problem I see is this:
he kinda smacked me.Quote:
. so I simply said "he kinda smacked me on the leg when I pulled him from the window"
that is a world of difference from something like:
when we both fell back my leg was injured when i was hit on the leg by the motions in play or his hand flew against my leg as we fell into the room causing this red mark
or many other innocuous explanations to what you would have a red mark
or even better, you should not have brought the cops attention to the mark and if he questioned you, you respond with one of the innocuous responses.
The statement "he kinda smacked me" is a statement that he hit you with intent although not with his full force.
In fact, your entire opening paragraph sounds like nothing more than setting up an excuse for the red mark without admitting it was from him intentionally hitting you. Yes, I tend to play devil's advocate often so you can take it as that or how one person views your statement in all honesty. -
11-14-2013, 02:46 PMxmalbearxRe: Domestic Violence Case, How Do We Win if There Was a Misunderstanding
I am just so confused as what to do. If we go to court, I feel like it could make the situation worse, as well as result in the time and fees. But in the end, we could still lose and they give him a worse sentence because they think he's lying. Or they might think I was giving false statements to the police. Is me not giving the police all the information/accidentally misleading them (if I just explain that I was hysterical and not thinking straight) enough for them to arrest or charge me?
At the same time, if he takes a plea bargain for a lesser sentence, I'm afraid the conviction will lose him his job. :/
Does anyone know if a conviction will result in the loss of his job? Or what the chances of any jail time are?
Sorry, I know nothing about any of this... just on the verge of a nervous breakdown. -
11-14-2013, 02:54 PMjkRe: Domestic Violence Case, How Do We Win if There Was a Misunderstanding
losing his job is up to his employer and/or if there are any governmental regulations addressing people with criminal records. No employer, not under such government regulations, is ever required to terminate employment against their will.
possibility of jail time: he needs to be speaking to his lawyer about that. Whether jail time is given in any particular situation varies greatly but one very important issue is the locality and often the specific judge. His lawyer would be much better equipped to be able to give your husband of the possibilities.
accidentally? No. Intentionally misinformation; yes. A misunderstanding on the cops part does not mean you intentionally lied or even mislead the cop.Quote:
Is me not giving the police all the information/accidentally misleading them (if I just explain that I was hysterical and not thinking straight) enough for them to arrest or charge me?
as to the "I'll just explain"..been tried before. It is often discounted. A person in that hysterical condition has not had time or the sense to formulate a "story" while a person days or even weeks after the incident has and has often conspired with the defendant to attempt to now provide contrary claims in an effort to have the charges dismissed.
Your husband needs a lawyer. he needs to be speaking with his lawyer concerning all of the issues you bring up. -
11-14-2013, 02:56 PMDogmatiqueRe: Domestic Violence Case, How Do We Win if There Was a MisunderstandingQuote:
Quoting xmalbearx
Sorry for the confusion on our part - unfortunately Mark gave you craptastic advice which might have ended up with YOU getting into trouble.
Anyway. Go to court. You WILL be given the opportunity to speak and give your side of the story. You have to bear in mind though that there are so many victims who recant their original statements that these days the judge doesn't necessarily need your revised statement.
As far as anything else goes, your husband needs to get his attorney to explain the options. We can't give you a "yes" or "no". -
11-14-2013, 03:22 PMxmalbearxRe: Domestic Violence Case, How Do We Win if There Was a MisunderstandingI understand your point of view on everything, and it is the same point of view I'm afraid the jury will have, which is why I'm having such a hard time figuring out how to fight it. I have no experience with cops whatsoever, and I thought if I just answered their specific questions, it would be better. The way I worded what happened is exactly why... I don't exactly think well under pressure. I was just in no state of mind to explain anything to them. Could barely even talk, I seriously thought my husband would kill himself and was horrified.Quote:
Quoting jk
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Thank you for your advice. I guess my main concern is that, if we go to court and they think we have made it all up, if it will make things worse on him. (I take full responsibility for it and wouldn't blame them if they didn't believe us... but I sincerely hope for my husband's sake that we can beat this and I want to do everything I possibly can right to make this work.) For example, if they give him a plea bargain of a smaller fine instead of jail time, and we still try to fight it so he doesn't have that conviction on his record... I'm scared if they think he is lying and find him guilty, they will be harder on him and send him to jail.Quote:
Quoting Dogmatique