Can I Still Be Convicted of Domestic Violence If I Acted in Self-Defense?

By | Domestic Violence

Not all domestic disputes are one-way matters. There are many cases where someone is accused of domestic violence but, in reality, was simply protecting him- or herself from the abusive actions of their accuser. Unfortunately, proving self-defense in court is not as easy as you might think.

Court Rejects Defendant, Accuser’s Changing Stories Regarding Self-Defense

For example, a Texas appeals court recently rejected a defendant’s claim he “acted in self-defense” and that the evidence used to convict him of assault on a family or household member was insufficient.

The criminal charge was the result of an October 2016 incident. The defendant and the accuser were previously in a dating relationship. On the day in question, the accuser allowed the defendant into her home. She said he then “broke her television” and was “frightening her.” This led to a series of 911 calls.

When police later arrived at the scene, the accuser “showed them fresh bruises on her neck and arms,” which she said the defendant caused. In a subsequent written statement, the accuser said the defendant “grabbed her arm twice with his hands, caused her pain, and left her with bruises.” However, several months later the accuser recanted her story and signed a “non-prosecution affidavit” in which she now said the defendant “did not assault her.” At trial, the accuser changed her story again, stating she was the one who hit the defendant and that she “supposed” he acted in self-defense when he then injured her.

The arresting officer also testified at trial. He told the jury that on the day of the incident, the accuser said the defendant assaulted her. She never mentioned hitting the defendant herself or him acting in self-defense to restrain her. Nor did the defendant raise self-defense when he initially spoke to the officer. Instead, he said he had “an argument” with the accuser but that it did not turn physical.

The jury found the defendant guilty. The Court of Appeals affirmed the conviction. As the appeals court explained, there were only three possible scenarios in this case:

  • The defendant assaulted the accuser, causing her bruises;
  • The defendant and the accuser had a verbal fight that did not escalate into physical violence; or
  • The accuser assaulted the defendant and he bruised her while reacting in self-defense.

Based on the evidence presented, the Court of Appeals said the jury “could have found beyond a reasonable doubt” that the first scenario was the truth. Notably, the court pointed to the failure of either the defendant or the accuser to raise self-defense at the time of his arrest and the recording of the accuser’s 911 call, which indicated the defendant “terrified her and that she was focused on avoiding physically confronting him.”

Contact a Galveston Domestic Violence Attorney

Even in cases where you know self-defense is the truth, proving it to a jury is still not an easy task. This is why you need to work with an experienced Galveston domestic violence lawyer. Call the Law Offices of Tad Nelson & Associates at (281) 843-9776 if you have been accused of domestic violence and require immediate assistance.

Does an Accuser or Prosecutor’s Financial Incentives Matter in a Domestic Violence Case?

By | Domestic Violence

There is understandably a high level of emotion surrounding a domestic violence allegation. But there are also legal and financial incentives at play. For example, under the Violence Against Women Act, the federal government administers a series of grant programs designed “to develop the nation’s capacity to reduce domestic violence, dating violence, sexual assault, and stalking by strengthening services to victims and holding offenders accountable.” Along similar lines, federal immigration laws allow victims of crime to seek a special type of non-immigrant status known as a “U visa” to encourage them to report offenses like domestic violence.

Houston, Dallas Courts Reject Appeals of Family Violence Convictions

But if you are accused of a family violence crime in Texas, does the fact that the prosecutor–or the accuser–received such federal benefits matter? In other words, can you argue there is an inherent and unfair bias against you because of these federal incentives that the jury has a right to know about before pronouncing judgment on your guilt or innocence?

According to two recent Texas appeals court decisions, the answer is “no.” In the first case, Guzman v. State, a defendant in Fort Bend County was charged with “assault family violence.” At trial, he attempted to argue the local district attorney’s office should be “disqualified” because it received VAWA grants. He also wanted the jury to know the accuser received financial benefits under VAWA, which gave her “an incentive to testify falsely.”

The judge declined to disqualify the district attorney and did not instruct the jury on the accuser’s benefits eligibility. After the jury convicted the defendant, he appealed to the Texas 14th District Court of Appeals in Houston. That court found the trial judge did nothing wrong. The appeals court noted that nothing in VAWA “ties a grant (or the amount of the grant_ to the number of cases prosecuted.” Furthermore, the applicant failed to present sufficient evidence that the accuser was eligible for VAWA benefits, much less applied for them.

In the second case, Quiroz v. State, the Fifth District Court of Appeals in Dallas rejected the arguments of another man convicted of assault-family violence who alleged the trial judge improperly limited his cross-examination of his accuser. More specifically, he wanted the jury to know the accuser applied for a U-visa, which the defendant claimed gave her a motive to “testify falsely that she was a victim of family violence.”

Here, the Fifth District said criminal defendants do not have an automatic right to question a witness about their immigration status. There must be some “causal connection” between their status and the testimony offered. In this case, the appeals court said there was no such connection, since the accuser’s eligibility for a U-visa was not tied to whether or not she testified in court about her alleged abuse.

Speak with a Galveston Domestic Violence Lawyer Today

Both of these cases illustrate the uphill battle domestic violence defendants face when seeking a fair trial. This emphasizes the importance of working with a qualified Galveston domestic violence attorney. If you are facing accusations and need assistance, contact the Law Offices of Tad Nelson & Associates at (281) 843-9776 today.

Is a Prenuptial Agreement Enforceable If It Has a Forfeiture Clause?

By | Divorce

Many Galveston couples choose to sign prenuptial agreements in order to minimize potential arguments over property in the event of divorce. Keep in mind, a prenuptial agreement is a legally binding contract. Texas law recognizes such agreements, and courts will not invalidate them except under narrow circumstances spelled out in state law.

TX Supreme Court Rules Wife’s “Rescission” Attempt Triggered $5M Penalty

The mere fact that an agreement may seem “unfair” to one side is not enough to invalidate it. For example, the Texas Supreme Court recently upheld a clause in a prenuptial agreement that nullified a payment to one spouse because she violated a “no-contest” clause that only applied to her. And we’re not talking about an insignificant amount of money either–the wife’s actions cost her $5 million.

The couple in this case married 13 years ago. Just before the marriage, they signed a prenuptial agreement. Basically, in the event of divorce the husband agreed to pay the wife $5 million as a “lump-sum” settlement. But the agreement also provided that if the wife “seeks to invalidate some of all of this agreement, or seeks to recover property in a manner at variance with this agreement,” she would forfeit the $5 million.

The husband filed for divorce six years after the marriage. The wife subsequently filed a counterclaim against the husband, alleging he failed to comply with other provisions of the prenuptial agreement. In a subsequent filing, the wife alleged the agreement itself “was marred with fraud” and asked the court for “rescission” of the entire contract.

After extensive litigation, a trial court judge held the wife’s actions constituted an effort “to invalidate all or a part of” the prenuptial agreement. She therefore forfeited the $5 million lump-sum payment. Both the intermediate court of appeals and the Texas Supreme Court affirmed this decision.

As the Supreme Court explained, “By seeking to rescind the Agreement, [the wife] sought what could have been a greater distribution of the marital estate under the Texas Family Code and related Texas common law than she would have received had the Agreement remained in place.”

The wife argued she should not be punished for seeking rescission because she believed “in good faith” that her husband “had already breached the agreement.” But the Supreme Court said it would not create what it considered a new exception to Texas law governing prenuptial agreements. The Court noted such an exception would “run afoul of our longstanding preference to protect the freedom of contract by enforcing contracts as written.” And in any case, Texas law “disfavors equitable exceptions to the enforcement of contracts as written.”

A Galveston Divorce Lawyer Can Help You

The lesson here is you should never assume a court will invalidate a prenuptial agreement just because you decide, in the midst of a contested divorce, that the terms are unfair or unreasonable. And if you have reason to believe your estranged spouse is not living up to his or her end of an agreement, you should speak with a qualified Galveston divorce attorney as soon as possible. Contact the Law Offices of Tad Nelson & Associates at (281) 843-9776 today if you need advice or assistance on any divorce-related matter.

 

Divided Texas Supreme Court Rules Wife Entitled to Entire Marital Home Following Husband’s Child Abuse

By | Divorce

Back in February, we discussed a pending Texas Supreme Court case involving the division of community property in a case where the husband committed multiple acts of sexual abuse against the wife’s daughters. A lower court held that despite the husband’s actions–for which he is currently serving a 60-year prison term–it would not be “just and right” under Texas divorce law to award the wife 100 percent of the marital home. Instead, the Court awarded the husband a 20 percent interest in the property.

Egregious Abuse or Insufficient Evidence of Husband’s Contribution?

By a vote of 5-4, the Supreme Court reversed the lower court. The five-justice majority could not agree on the reasoning for this decision, however, leaving the Court without a single controlling opinion. Effectively, this means the wife in this case will likely get 100 percent of the home, but it is unclear what precedent this sets for future cases involving similar facts.

A three-justice plurality led by Chief Justice Nathan L. Hecht concluded that it would not be “just and right” to allow a spouse to keep part of a family home when he was previously “convicted of using the home to sexually abuse his stepdaughter.” The Chief Justice was careful to note that acts of “family violence,” in and of themselves, do not justify depriving a spouse of “an interest in all or even a specific part of the community estate.” And the Supreme Court has made it clear in prior cases that the trial courts should not use the division of community property to “punish” one spouse for their fault in breaking up the marriage. But the Chief Justice said the “egregious” nature of this husband’s conduct in this case–i.e., that he sexually abused his stepdaughters for many years, he did so in the family home, and he was later convicted of criminal charges related to the abuse–all compelled reversing the 20 percent award.

Justice John P. Devine, writing for himself and one other justice, agreed with the Chief Justice’s conclusion but not his reasons. Instead, Justice Devine held that there was insufficient evidence in the record to support the husband’s claim he ever had any community property interest in the house to begin with. Originally, the couple lived in a home solely owned by the wife. After a fire destroyed that home, the wife used her insurance proceeds to purchase the present house. Justice Devine said it was unclear whether any portion of this insurance money was “burdened by the community,” or whether the husband added any “additional value” to the property.

Justice Jeff Boyd, writing for the four dissenting justices, argued the plurality was wrong because it substituted its own judgment of what is “just and right” for that of the lower court. And Justice Devine’s opinion was off-base because the wife never previously challenged the sufficiency of the evidence supporting the community property determination.

Speak with a Galveston Divorce Attorney Today

The Court’s narrow, divided opinion indicates the difficulty of overturning trial court rulings with respect to divorce. Indeed, the Chief Justice’s plurality went to great lengths to emphasize the exceptional nature of the husband’s history of criminal sexual abuse to justify its decision to overturn the lower court’s ruling.

Most divorce cases will not involve horrendous acts of child abuse. But even in more conventional divorces the same “just and right” standard applies to the division of community property. If you need help from a Galveston divorce lawyer in fighting for what is just and right in your case, contact the Law Offices of Tad Nelson & Associates today at (281) 843-9776.

How to Break the Cycle of Domestic Abuse

By | Domestic Violence

If domestic abuse has a pattern, that pattern would be the cycle. The key to ending abuse is to disrupt the cycle and using all legal means available. Read on for more information about how to end abuse—and possibly save your life in the process.

The Cycle of Domestic Abuse

According to experts, domestic abuse rarely comes out of nowhere. Instead, after the initial honeymoon phase, tension begins to build in the relationship. Your partner might insult you, try to control your movements, and isolate you from friends and family. Tension continues to escalate until it culminates in an act of domestic violence.

However, many abusers immediately plead for forgiveness and become even more attentive to their partners. The aftermath of the violence starts a second honeymoon phase—which does not last long.

Getting Off the Merry-Go-Round

Breaking the cycle takes willpower and incredible strength. It also requires facing some uncomfortable facts. That slap in the face? That is probably not an isolated incident. The drunken assaults which send you to the emergency room? Those are likely to increase in intensity.

The first step you can take: tell someone about the abuse. Make sure it is someone you can trust, otherwise they might casually tell the abuser what you told them. If there is no one you can trust, try to meet with a counselor or other mental health professional. They are professionally obligated to maintain confidentiality.

Also develop a safety plan. The only way to really end the cycle is to leave. Ahead of time, you should pull together an escape plan, which should include:

  • Ways of leaving the home in a fast, safe manner
  • Important phone numbers, such as the number to a nearby shelter
  • A bag of everyday items that you will need
  • Important documents, such as Social Security cards, birth certificates, medical records, driver’s license, and car registration
  • Medicine that you will need
  • Money, credit cards, or checks (preferably not for a joint account which your partner could close)
  • Items your children will need, if you have children

Finally, seek an order of protection against your abuser. This is a court order telling your abuser that they cannot contact you or come near you. You must request an order from the court in the county where the abuser lives. For help, you can work with an attorney, visit a legal aid clinic, or download the protective order kit available at the Attorney General’s website.

Speak with a Galveston or League City Domestic Abuse Attorney

Breaking the cycle of domestic abuse is difficult—but possible. You may have legal options that you are unaware of. To schedule a consultation with a talented Houston criminal defense attorney to discuss your case, please call the Law Offices of Tad Nelson & Associates today, 281-843-9776.

How to Fight a Protective Order in Galveston, Texas

By | Domestic Violence

Protective orders are powerful tools. If a judge issues a domestic violence order of protection against you, you might need to move out of the house and turn over any firearm in your possession. Protective orders can frustrate your ability to take care of yourself and deter you from seeing your children. As a result, it is not unusual for a person to make rash and outright false allegations of domestic violence to get a protective order against a partner.

Fortunately, you do have options for fighting a protective order so that you can get back to your normal life. Follow these tips below.

Immediately “Lawyer Up”

You can try to fight the order on your own. But chances are you will not be very persuasive before the judge or know how to expose inconsistencies and gaps in your partner’s story. Instead, find an experienced Galveston domestic violence attorney to represent you.

Review the Protective Order

The police probably delivered it to you, which might have come as a complete surprise. When you can get a moment to think clearly, look at the protective order. It should explain the threatening or violent conduct you allegedly engaged in.

The accusations should be fairly detailed, though it is not unusual for crucial details to be missing. Remember that emergency protective orders are issued without ever hearing your side of the story, so do not be surprised if the allegations are presented in a slanted way.

Collect Evidence

Ideally, you should convince the judge at your hearing that you did not engage in the violent or threatening conduct. This is the best defense—much better than “she started it.” Simply pointing out that your boyfriend or girlfriend is also violent does not do much to convince the judge that the protective order is unnecessary.

Instead, collect any of the following:

  • The names of witnesses who observed the event. They might be able to testify that your partner actually attacked you while you tried to stop the violence.
  • Any physical evidence, such as clothing or beer bottles. Your partner might have been out of control because she was drunk.
  • Emails or letters in which your partner admits what really happened during the incident giving rise to the protective order.

Be Professional in Court

Judges, like everyone else, make snap judgments based on appearance, so look as professional as possible—neatly groomed, cleanly dressed, etc. You will also have to answer questions at the hearing. Remember to be honest and keep your answers factual. Do not engage in character assassination or vulgar language. If you need an interpreter because you do not speak English well, then ask for one.

In a Jam? Contact a Galveston or League City Domestic Violence Lawyer

Those accused of domestic violence have rights, one of which is the right to a fair hearing in front of a judge. To protect yourself, build the strongest defense possible, using high-quality evidence. If you need help in Houston, contact the skilled criminal defense attorneys at the Law Offices of Tad Nelson & Associates for a consultation. We have helped many people accused of domestic violence and are prepared to discuss your options with you. Call (281) 843-9776. 

What to Do when Your Ex-Spouse Interferes with Visitation

By | Divorce

Divorce is often an emotionally-draining experience, so it is normal to breathe a sigh of relief when you reach the end. You might expect your post-divorce life to be easy in comparison to your marriage and your divorce.

Unfortunately, problems often crop up between ex-spouses, even after a judge has signed a divorce decree. Your ex-spouse might interfere with your visitation rights. Helpfully, Texas law provides parents with the ability to compel compliance with the visitation order, but you should meet with an experienced Galveston, Texas divorce attorney as soon as possible.

Documenting the Interference

First, you should fully document the reasons why visitation has fallen through. Your ex-spouse might have plenty of excuses, none of which sound believable—your child is sick, an emergency has arisen, etc. Write down every date in which visitation was cancelled and document the reason given. If you were sent emails or voicemails, then preserve those, since they are helpful evidence.

You also should show up at the drop-off point, which might be a point halfway between where you and your ex live. Even if you know your ex is not bringing your child, you should still show up. Fully document that you were there at the time and place and that no surrender of your child took place.

Filing for Contempt of Court

Second, you should meet with a Galveston child custody attorney to discuss filing for contempt. Contempt of court means that a person subject to a judge’s order is disobeying it, and judges have inherent authority to compel compliance. When an ex-spouse interferes with visitation, they flout two orders:

  • To surrender your child at a certain date and time
  • To give you possession of the child for the amount of time spelled out in the custody order

To bring your ex into compliance, a judge might:

  • Fine your ex until he or she agrees to start following the visitation schedule
  • Send your ex to jail until he or she agrees to abide by the visitation schedule
  • Award you attorneys’ fees
  • Some combination of the above

Many ex-spouses are shocked to find themselves in jail for a few days for not letting you see your children. Nevertheless, judges do take contempt cases seriously, since your ex is flatly challenging the judge’s authority in this case.

Speak with a League City or Houston Child Custody Lawyer

Parents are not required to suffer in silence as their ex-spouse uses the children as pawns. Instead, concerned parents should immediately vindicate their parental rights in court, including their right to visitation. To start the process, please contact Galveston child custody attorney Tad Nelson to schedule your free consultation. Call 281-843-9776 or submit our contact form.

What are Community Property and Separate Property?

By | Divorce

A Texas divorce does more than free up each spouse to marry someone else. Instead, a marriage is an economic unit, and a divorce completely unwinds your financial entanglements. As part of your divorce, a judge will need to divide your marital property, which is called “community property” in Texas. Read on to find out more about what a judge will divide.

Community Property—What You Acquired Together

There is an easy, quick way to understand community property—it is any property you acquired while married. Generally, it does not matter whose name is on the title to the house, boat, or car. What matters is that you were married when one of you acquired the property.

Wages earned are also community property, as is anything bought with wages. If your husband bought a condo secretly using only his wages, the condo is still community property, which means each spouse owns a 50% stake in the property. Usually, community property is divided 50/50 upon divorce.

Separate Property

Separate property is often something you owned before getting married and brought into the marriage, such as the car you bought six months before walking down the aisle. It can also be a retirement account, cash in a checking account, or investments. However, income earned on separate property is often community property. For example, if you own a rental property, then the rent earned while married belongs to both you and your spouse.

Texas law also considers some property obtained while married as “separate” property, such as:

  • An inheritance. Say your mother died while you were married and left only you her home. Typically, the inheritance is your separate property.
  • A gift. If someone gave you a gift, then it is yours.
  • Some recoveries for personal injury claims. If a driver struck you, and you have a lawsuit seeking compensation, then the money is typically yours. You do not have to share it.

Sometimes there is a good faith dispute as to whether something is community property or separate property. For example, a family friend might have given you an expensive gift. But was it really for you and your spouse? A lot will depend on the facts.

Are You Confused? Speak to a Galveston, Texas Divorce Lawyer for Help with Your Case

Before divorcing, you should fully understand what property you can walk away with. However, community property rules are complex, and you should meet with an experienced Galveston or League City divorce lawyer to review your situation. Contact the Law Offices of Tad Nelson & Associates today at 281-843-9776 for a free consultation. We are eager to assist you throughout each step of your family law case.

How to Extend or Modify a Protective Order in a Texas Domestic Violence Case

By | Domestic Violence

If you have a Texas protective order for your security and the safety of your family, it can be terrifying to think about what the abuser may do when the stated time period comes to an end. According to the terms included in the order, a restraining order may be in effect for a few weeks, months, or even years, depending on the situation. Even when the order is not expiring, you may live in fear due to types of misconduct by an abuser that were not specifically addressed in the order, but are now becoming an issue. You are vulnerable because police cannot take action against conduct that is not officially illegal.

Fortunately, Texas law provides a modification process for protective orders, giving you legal options to extend your protection. However, because the process to modify a restraining order can be complicated, you should discuss your circumstances with a skilled Galveston, TX domestic violence lawyer.

Types of Protective Orders Under Texas Law

There are three classifications of restraining orders in Texas, which are applicable to different situations depending on the details of your case.

  1. Emergency Restraining Order: An EPO is an order that must be issued by the court immediately after an arrest; you can also apply for one due to an incident of domestic violence where there was no arrest. You are not required to be present in court, nor do you need to give notice to your abuser regarding the proceedings. An EPO may last from 31 to 91 days.
  2. Temporary Protective Order: A court may issue a TRO for up to 20 days upon filing of a petition related to a domestic abuse situation. It can protect you from a range of abusive conduct, since the law allows a judge to direct the abuser to do or not do certain acts.
  3. General Order of Protection: This type of order can go up to two years where a court determines that violence has occurred and is likely to occur again if the abuser is not enjoined. A judge may issue this restraining order for beyond two years, but only if the abuser was the subject of two or more previous orders or caused serious bodily injury to the victim.

Proceedings to Extend or Modify a Restraining Order Terms

To make changes to the terms and conditions of a protective order, you must file a motion that includes your specific requests, such as:

  • To extend the time period as provided by law; or,
  • To include any item or acts that could have been contained in the original order.

You do have to give notice to the respondent if you petition the court to extend or modify a restraining order, but this requirement is fulfilled by sending the documents via registered or certified mail to his or her last known address.

Legal Help from a Galveston, TX Domestic Violence Lawyer

If your protective order is coming to an end or you have reasons to modify the existing terms, it is critical to consult with a dedicated domestic violence attorney. Our lawyers at Tad Nelson & Associates can assist with modifications, extensions, or any other details related to Texas restraining orders, so please call our Galveston, TX office today at 281-843-9776 to set up a consultation. You can also visit us online for more information on our services.

Technology and Stalking in Texas Domestic Violence Cases

By | Domestic Violence

Physical harm and threats are synonymous with domestic violence, but there may also be elements of stalking if you are involved in an abusive relationship. While we rely on technology and digital devices for our everyday activities, they can also provide the means for an abuser to track a victim. NPR reported in January 2018 that digital stalking is on the rise among ex-spouses who use devices to manipulate, control, and gather evidence for divorce cases; plus, abusers may employ tracking technology to locate an individual and cause harm. If you are exiting or already left an abusive relationship, you can protect yourself by reviewing your use of certain devices and eliminating those that put you at risk. You should also consider retaining an experienced Galveston, TX domestic violence attorney who can help explain legal options for dealing with a dangerous abuser.

Cell Phone and Tablet Applications

Whether or not you are aware of it, your smart phone and tablet – and the applications you install on them – can reveal your whereabouts. You can disable GPS tracking on your mobile device, but use extra caution when posting content on social media. A photo, comment, video, or other material may include a time and location stamp. Messages you send, including texts and emails, can also reveal your actions, especially if you share a cell phone or other telecommunications account with a stalker.

GPS Devices

Even if you disable tracking functionality on your cell phone and delete apps that may disclose your location, there are miniature GPS devices that can be placed almost anywhere, undetected. They are small enough to drop into your purse, a jacket pocket, or other clothing items. Worse, they can be installed on the vehicle you use, giving an abuser a minute-by-minute account of where you are and have been throughout the day.

This is a criminal act and it may be possible to press charges if you do spot these tiny devices on your car. However, the above-mentioned NPR article recounted the story of a woman who was powerless to take legal action against her ex-husband after he placed a miniature GPS on her vehicle. After their divorce, the couple still maintained joint ownership of the car. Because it was half his, the man had a right to track his own vehicle.

Laptops and Tablets: Some of the applications that you use on your smartphone are also accessible via your computer or laptop. These devices can reveal your location and online activities in the same way as your portable devices.

Discuss Stalking and Physical Abuse with a Galveston, TX Domestic Violence Lawyer

If you suspect that an abuser is using any device to track your location or otherwise engage in digital stalking, immediately cease use of your cell phone, tablet, computer, and any other device that could allow monitoring. Check your vehicle yourself or have a trustworthy mechanic in the Houston area look it over for foreign devices. Finally, please call 281-843-9776 or go online to reach the attorneys at the Law Offices of Tad Nelson & Associates in Galveston, TX. We can tell you more about your legal options in all types of domestic violence matters, and we offer a free consultation to review your situation.