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  1. #1
    Join Date
    Sep 2012
    Posts
    2

    Default Felony Domestic Violence by Impeding Breathing or Circulation

    My question involves criminal law for the state of: Texas

    While in the midst of a bitter and acromonious divorce with my ex-wife, she falsely alleged that I had choked her while involved in an argument with her in a dentist office regarding my child. Of note is that at no point during our 13 year relationship was family violence of any type an issue or allegation.

    Due to recent enhancements of the domestic violence laws in Texas, any act of family violence which involves choking or impeding circulation is now a 3rd degree felony. Furthermore all that is required for assumption of guilt, is the filing of a report with some type of corroborating information or witness, regardles of the relationship status to the alleged victim by this supposed 3rd party witness.

    During our divorce process my ex-wife became intent on destroying the relationship between me and our 12 year old son as a way to hurt me. Google parental alienation syndrome and you will see her picture by the topic. Her misdirected and sick efforts to accomplish this were incredibly enhanced by the allegations and subsequent filing of a report by the police officer without ever consulting me. Consider the risks vs. benefits to her for filing this false report:

    • obtaining and granting of anex parte protective order immediately suspending all rights of visitation with my son
    • had discussions with the District Attorney, eventually resulting in a Grand Jury indictment of me for Felony Domestic asault, by impeding the breath or circulation
    • elevated "status", with similarly shunned status of me by the Judge throughout the remainder of our case, e.g. failure to approve or even render judgment of submitted pleadings, writs, etc.
    • risks - none.


    Given the above history, now fast forward to 14 months later, today September 24 2012. Obviously I remained consistent in denying her allegations and eventually went to a full fledged trial for the indicted charge of felony assault, impeding breathing or circulation, domestic violence. My intent of posting this is to alert others as to how ridiculous our legal system truly is, and seeking opinions and expert advice from my peers here as to my next actions.

    The trial concluded today with the jury lacking sufficient evidence to find me guilty of the felony assault charge of impedance of breathing and circulation, yet finding me guilty of a lesser offense of misdemeanor assault - family violence. This lesser offense was added by the DA at the last minute to the Charge to the Jury announced by the Judge prior to their recusal. It is worth noting that at no point in the 14 months leading up to this trial, did the DA's plea offerings, or grand jury indictment contain any verbiage other than the charge for felonious assault. In my mind and as stated by several courtroom observers, the evidence presented during the state's case was woefully deficient in proving their case beyond a reasonable doubt. Their attempts at "splitting the baby" by the late addition of the lesser offense possibility allowed them to not have egg on their face surely to occur with a complete acquittal, and was heavily influenced by my ex-wife's divorce attorney's converssation with the State. He attended every moment of both days of our case by the way.

    Punishment phase hearing is set for Thursday for the lesser offense of misdemeanor assault. As I sit and reflect tonight I am now faced with accepting the DA's "plea offering" of 1 year in jail, converted to 2 years probation, $4000 fine, completion of the BIPP program, and 200 hours of community service versus denying that and allowing the Judge to set sentencing as he sees fit. All the while simmering in disbelief and discontent that no such action ever occurred, and yet I was never able to offer my side at any point.

    What would you do? Is this appealable??

    Thanks so very much for any information or advice?

    Regards,

    L2B

  2. #2
    Join Date
    Sep 2011
    Location
    OH10
    Posts
    17,019

    Default Re: Felony Domestic Violance by Impeding Breathing or Circulation Trial

    At trial was when you had the chance to present your side. Your lawyer must have felt the case would fail on its own merits. We cannot decide how to proceed for you. You should discuss an appeal with your lawyer.

  3. #3
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Felony Domestic Violence by Impeding Breathing or Circulation

    You went to trial and were convicted, and now face sentencing. That's what happens in a criminal case if you're convicted of a crime. Your lawyer can advise you as to what he believes the judge will do if you don't take the prosecutor's offer.

    If you believe that the judge committed errors that justify reversal, discuss the possibility of an appeal with your lawyer. We have no access to the transcripts or court file.

  4. #4
    Join Date
    Sep 2012
    Posts
    2

    Default Re: Felony Domestic Violence by Impeding Breathing or Circulation

    Mr. Knowitall, thanks for your feedback, although not tremendously inciteful. Please re-read my entire post and you will discern that I was attempting to gain insight on what the punishment might be if issued from the Judge, having been tried for a felony assault domestic violence, but found guilty only for misdemeanor assault family violence class A, due to the fact that I did not choke my ex-wife as alleged.

    If anyone from Texas happens to come across this post and has knowledge of Judge Mark Rusch's court or rulings, please let me know.. Thanks

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