Video: Family Law Defense: Must-Know Answers to Protect Your Rights!
Jennifer Anton | 00:04
Hi, we’re here today with John Helms, one of Dallas’s leading criminal defense lawyers, and he’s going to talk to me today and you about the law of family violence. What I wanted to start off by asking you, John, is how does Texas law define family violence?
John Helms | 00:26
Well, Texas law defines family violence more broadly than you might think. It involves violence or threats of violence against what the Texas Family Code defines as the family. That’s broader than what most people just think of as people in your family, like your relatives. It can include people that you’re in a dating relationship with. It can include former spouses, and it can even include roommates. So it’s violence involving that broader group. We call it family violence, but it’s broader than you might think.
Jennifer Anton | 01:01
So what types of behaviors are even considered family violence in Texas?
John Helms | 01:06
Well, Texas considers behaviors as family violence if they involve threats of violence or any type of touching that might be considered offensive to someone or that might cause bodily injury or serious bodily injury.
Jennifer Anton | 01:25
Are there common misperceptions about family violence that people should know?
John Helms | 01:31
The most common misconception about family violence in my view is that it is a private matter between the two people involved. And Texas law does not look at it that way at all, and neither do prosecutors who are prosecuting family violence cases. Texas law and prosecutors look at it as involving a very significant public interest. Because anytime there’s violence between people in a family relationship, that can require police officers, multiple police officers, to come to the scene and investigate and try to figure out what’s going on. They have to make reports to prosecutors and prosecutors have to make decisions about prosecuting the case.
These types of cases end up in court, so it takes up space on a court’s docket. And we know that whenever there are family violence incidences, there is a pretty good chance that there will be more. So for all those reasons, there’s a significant public interest involved. And what that means as a practical matter is, the two people who are involved in the incident can’t just decide they don’t want it to go to court. It’s broader than that. Prosecutors make that decision, not the people involved.
Jennifer Anton | 03:00
So John, how can family violence impact children directly, even if they weren’t physically harmed?
John Helms | 03:07
Family violence can involve children because, number one, they may witness it, and that can be very traumatic, especially for young children, if they see family members being abusive to other family members.That can cause a lot of psychological trauma. In family violence situations, sometimes there has to be a separation between the two people involved,so that can mean that the child essentially loses one parent for a temporary or maybe even a longer term basis, and they may not understand why that’s happening. So, all of those things can have significant effects on children.
Jennifer Anton | 03:55
John, what are protective orders and how does that work in Texas?
John Helms | 04:00
A protective order is an order by a court that is designed to protect a victim of family violence. So what these orders will do is they will direct the person who is the accused, the person accused of family violence, it will direct them not to have contact with the victim, not to go near the victim’s house for a period of time. And so normally that’s going to be 30 days. If there was a weapon involved, it can be 60 days. And it’s designed to give the victim time to sort out what they want to do. Do they want to move out? Do they want to get separate living arrangements? How do they want to deal with the fact that there’s been violence? It’s a cool and off period as well. So district attorney’s offices will just go down and get those kinds of orders as a matter of course, anytime there’s a family violence situation.
Jennifer Anton | 05:08
So what are immediate steps that someone should take if they are a victim of family violence?
John Helms | 05:16
If someone’s a victim of family violence, well, the first thing is, did it just happen? Or is it something ongoing? If it has just happened, they need to call the police and they need to get out of the situation as fast as they can so that they don’t become a victim of even more violence. If it’s something that’s been ongoing, there are a number of resources that they can contact to help them navigate the whole situation. There are family violence hotlines. In Dallas, we have places like the Genesis Women’s Shelter and the Family Place where people can call to get advice on exactly how to handle their particular situation. But what they should not do is just hope it’s going to go away.
Jennifer Anton | 06:09
So, John, tell me, what should somebody expect after there’s been an accusation of family violence?
John Helms | 06:16
What someone should expect after they’ve been accused of family violence is, first of all, if the family violence has occurred in the immediate past, they should expect a number of police officers are going to come show up wherever they are and ask them questions about what happened and ask the other person about what happened. You’re not required to talk to the police officers, but what they’re going to do is try and figure out who the aggressor is and then they’re going to arrest the aggressor. And so that way it separates the people. Then the one they arrest will be taken to the county jail and the process and a bond will be set and we’ll be able to bond out. After that process gets started where a prosecutor, which is a lawyer that represents the state of Texas, they are assigned to the case and they start reviewing whether this is a case that they think should be prosecuted and that’s a process that takes some time. The most likely scenario is that it will be and then the case will begin.
Jennifer Anton | 07:40
So can an accusation of family violence affect somebody’s employment?
John Helms | 07:47
Well, an accusation of family violence can affect someone’s employment. The fact that you’re accused of family violence, if it becomes a court case, is a matter of public record. And so there’s nothing you can do to get that sealed while the case is going on.
So it will be public knowledge that there’s a court case where you’re being accused of family violence. And of course, if you’re applying for a job, they do a background check on you and they could find it.If you have a job and your employer finds out about it may be part of their policy that they terminate you. So it can be something that has serious consequences.
Jennifer Anton | 08:39
Can an accusation of family violence affect your custody rights?
John Helms | 08:44
Well, the answer is absolutely an accusation of family violence can affect your custody rights. However, in order to have a change in your custody situation, there has to be a request to the family court that’s handling your custody situation to change it. Very often, if there is violence and a divorce that comes up, the judge in the family court case who’s deciding on custody is going to take into consideration the fact that there’s been an accusation. And you can defend yourself in the family court case and you can say it didn’t happen. But if there’s a criminal case going on, your criminal defense lawyer is probably going to want you not to say anything in the family court case because it could affect a criminal case.
Jennifer Anton | 09:39
In terms of defending oneself, what kind of legal defenses are there?
John Helms | 09:45
Well, there are a number of defenses. First of all, there is the defense that it was just made up. If that’s the case, if this is just an accusation with no basis, you can defend yourself by saying it’s made up. It didn’t even happen. You can defend yourself by saying that it’s self-defense. If there was physical confrontation, you have the right to defend yourself in a reasonable way. And if what happened was self -defense, that means you’re not guilty. If the jury decides that you are defending yourself reasonably.
You can defend yourself by arguing that the alleged injuries were not severe, which affects the degree of the crime, whether it’s a class A misdemeanor, third degree felony or second degree felony. So you can say that the injuries were exaggerated. And so there are a lot of defenses that you can use depending on the fact of the case. So, there are crimes involving making false police reports, but they are very rarely used in family violence situations, even if the police believe someone just made it.
Jennifer Anton | 10:58
Then how does Texas handle false accusations of family violence?
John Helms | 11:23
The reason for not charging crimes of making a false statement, and I’ve talked to police officers about this, the reason is they don’t want to discourage people from making true accusations of family violence by making them think that there’s a chance that if they accuse someone and they’re not believed, then they can face consequences. So the fact of the matter is people who make false accusations of family violence rarely face any criminal consequences. Now, you might be able to file a civil lawsuit, but that’s a separate issue.
Jennifer Anton | 11:58
So can family violence charges be dismissed?
John Helms | 12:02
The answer is they can be, but it’s important to understand that it’s not a question of, you push a button and then the case just goes away. Normally, a family violence case will only go away if the prosecutors feel that they can’t prove it. So it’s not even a question of whether both parties to the incident want the case to be dismissed. Many times prosecutors will not dismiss cases just because the two people involved want them dismissed.
That’s because prosecutors feel it’s important to protect the public interest and public safety that can be invoked any time there is family violence. So they can be dismissed if the prosecutor feels they can’t prove their case. But you can’t just decide, I want it dismissed. And then there are things that you can do that will allow you to get the case dismissed.
Jennifer Anton | 13:07
What are some of the penalties in family violence cases in Texas?
John Helms | 13:12
Well, jail time. You can go to jail or prison for extended periods of time if the violence is severe. You can get probation if it’s not severe. So it really depends on the facts of the case.
If it was a loud argument and there was some pushing, some bruising because of the pushing, that’s not going to be as serious as if somebody pounded someone with their fist repeatedly and caused serious injuries and broken bones and things like that. And if a deadly weapon was involved, like a gun or a knife, the penalties get even more severe. So you have to look at what actually happened, what were the injuries and was a deadly weapon used or even displayed in connection with that incident.
Jennifer Anton | 14:10
How does Texas law protect the victims of family violence?
John Helms | 14:16
Well, the first thing that Texas law does to protect the victims of family violence is the Texas law allows the district attorney’s office to seek a protective order, which is an order by a court preventing the person accused of family violence from going anywhere near the alleged victim for a period of 30 or 60 days if there was a deadly weapon that was used or involved,the protective order will make it so that the alleged victim has time to decide what to do about their living arrangements, whether they want to move out, move away, whether they want to get a divorce if it’s a marriage situation, gives them time to decide how they’re going to alter their lives because of whatever happened.It creates a cooling off period, so that’s the first thing.
Then protective orders can be extended if there are further threats. District attorney’s offices in Texas will have a victim coordinator who will work with the victims of family violence to help them understand all of the rights that they have, all of the procedures that can be used to try to protect them.
Jennifer Anton | 15:45
And so is a victim entitled to all of that even before they’ve reported it?
John Helms | 15:51
Well, a district attorney’s office would get involved when there is a report of a crime because they are involved in prosecuting crimes. But there are resources that someone could use or access before they’ve reported it. Those are private resources, like, for example, family violence hotlines or women’s shelters or family violence shelters like Genesis and the Family Place. So you can go and contact them, go over there or call them and they will tell you what kinds of programs that they have on a private basis. Those you can get before you’ve made any type of police report.
Jennifer Anton | 16:36
Can Someone decide just to not press charges in a family violence situation?
John Helms | 16:48
Well, it’s a myth that someone can just decide not to press charges. That’s a phrase people have heard, probably on TV, movies, but the decision about whether a criminal case involving family violence goes forward is up to the prosecutors in the district attorney’s office. You cannot just say, I don’t want the case to go forward and then the case stops. That’s a myth. It’s important to understand that reason,Texas law is a public matter. A family violence case involves a lot more than just the two people. There is a public interest involved and the public interest involves all the police officers and prosecutors and the courts that have to get involved any time there’s even an accusation of family violence.
And there is a public safety interest in trying to prevent future acts of family violence that might cause even more serious injuries or death and that will involve those public resources. So it’s not just a matter between two people, the alleged victim can’t just decide, I don’t want to press charges and that it just goes away. That’s something only a prosecutor can decide.
Jennifer Anton | 18:10
What rights does the accused defendant have when defending himself in court?
John Helms | 18:16
Well, the first right that you have is that you are not guilty of family violence unless you plead guilty or you have a trial and a jury decides that you’ve been proven guilty beyond a reasonable doubt. So you have the right to have your guilt or innocence decided by a jury and you can only be found guilty if the state proves their case beyond a reasonable doubt. That’s probably the most important right that you have. But you have the right under Texas law to get all of the information that the investigators and law enforcement have come up with during the investigation.
So, for example, if the alleged victim has made a statement, a written statement, you have the right to get that. You have the right to see any body cam videos and there will usually be several because whenever there’s a family violence call, the police will send several officers out. They’ll each turn on their body cams and they’ll each be talking to whoever is there.
And so you get to see the body cam videos and that can tell you a lot about what the person said at the time about what he did. And you can get any other investigative material that is required to be turned over to you. So those are things that a lawyer will get and the lawyer will review those and go over those with you to help prepare your defense for trial.
Jennifer Anton | 19:53
Are there differences in how the family courts treat family violence with regard to men versus women?
John Helms | 20:01
Well, legally, there’s not a difference. The law doesn’t distinguish between people who are accused of family violence or men versus women.
So legally, there’s not a difference. But in my experience, as a practical matter, there can be significant differences. And the reason for that usually is that if you have a situation with a man and a woman and the woman is accused of family violence because she’s the aggressor and she’s caused injury or something like that, prosecutors and juries tend not to be as concerned for a man’s welfare if a woman has done something violent as they are if a man has done something violent to a woman. So you, as a practical matter, are more likely to get what’s called a conditional dismissal if a woman is involved.
Maybe she takes some anger management classes and a prosecutor is willing to dismiss the case. The prosecutor doesn’t see her as a true threat to really hurt anyone seriously. Whereas if it’s a man, prosecutors may think that the man is more of a threat to do serious harm. So there really are practical differences, even though people don’t want to say that.
Jennifer Anton | 21:32
How does family violence law apply in the situations of roommates or in the situations of non -married couples?
John Helms | 21:42
The definition of family violence for criminal cases comes from the family code and the Texas Family Code defines family violence in terms of not just blood relatives, but people where there’s a dating relationship that’s considered within the sphere of family violence. So you look at whether the relationship involved is a romantic relationship or involves intimacy. Those kinds of situations can involve family violence. You look at whether the people involved are within the same household.
So if they are roommates and they live within the same household, even though they’re not related and even though they’re not dating, they can still be involved in family violence.
Jennifer Anton | 22:38
Can you tell us a little bit more about what kind of resources are available in Dallas for those victims of family violence?
John Helms | 22:46
Sure. The kinds of resources that are available for victims of family violence in the Dallas area include hotlines that you can call where they can help you to make immediate decisions about your safety, where you can go, how you can report, things like that. There are organizations that provide resources to the victims of family violence, like the Genesis Women’s Shelter and a place called the Family Place. Those are places where victims of family violence can go to get support, to get advice on what they should do next to help arrange their living situation and their affairs so that they can be safe.
Jennifer Anton | 23:40
How important is it to have legal representation in family violence cases?
John Helms | 23:47
It is extremely important to have legal representation in family violence cases for a number of reasons. First and foremost, I think there are a lot of misconceptions about family violence cases. I’ve talked to lots and lots of people who think, for example, that if the alleged victim doesn’t want the case to go forward, then they can just decide not to press charges and the case just goes away. That doesn’t happen. It’s not up to them. It’s up to a prosecutor to decide. The prosecutor is going to make their decision based on whether they think that they can prove their case. There are misconceptions about what kind of consequences there are for family violence. For example, a lot of people don’t realize that a conviction for family violence, even at the Class C misdemeanor level, even if it was just like a slight push and it’s being handled at a municipal court in a city, can result in the loss of your right to possess a firearm for life.
So there are all kinds of consequences and misconceptions, and for those reasons, people believe there are potential ways to stop a case before it gets rolling. Depending on the families, the average person isn’t going to know about that. A lawyer is going to know about the procedures that you might be able to use to try to get the case dismissed or not prosecuted.So it’s very important to get a lawyer involved.
Jennifer Anton | 25:32
What advice would you give to someone who’s been falsely accused of family violence?
John Helms | 25:39
Well, if someone’s been falsely accused of family violence, the first thing I would tell them is don’t assume the case is going to go away because it’s a false accusation. You may believe it’s a false accusation. You may know it’s a false accusation, but if someone else is accusing you and the district attorney’s office believes that there is a good chance that it’s true, they’re going to go forward and you’re going to have a trial where you’re going to have to defend yourself in the trial.
So don’t just assume that because it’s false, it’s going to go away. My advice would be to contact a lawyer immediately so that the lawyer can develop a case and hopefully get the evidence needed to convince the prosecutors on the case that it really is a false accusation.
Jennifer Anton | 26:35
So, John, if someone is convicted on a charge of family violence, what would they be looking at in terms of how it affects the rest of their lives?
John Helms | 26:47
Well, if you’re convicted of family violence, it’s going to have a lot of effects on your life going forward. First, I think it’s important to note that if you’re convicted of family violence, and really this doesn’t apply to any other criminal conviction in Texas, you can’t get the records expunged or sealed if there’s a conviction for family violence. So some people think, well, even if I’m convicted, I can just get it taken off my record. But that doesn’t happen. It will stay on your record. Second, it can affect employment opportunities.
Anytime you’re applying for a job, your employer is probably going to do a background check and they’re going to see that you have a family violence conviction. That may make a difference between whether you get fired or someone else gets fired. It depends on what kind of job we’re talking about, but it can have a definite effect on your employment opportunities. Same thing with education. If you are looking to get more education, go to college or get further post -college education, they can look and see that and they might decide not to accept you.
Then another area that will be affected is your right to possess a firearm. If you’re convicted of domestic violence, you’re not going to be able to possess a firearm for the rest of your life. That’s current federal law. Now, the United States Supreme Court has taken up a number of issues relating to criminal convictions and firearms, and it’s possible that the law could change, but I doubt it. So if you get a conviction, you’re looking at not being able to possess a firearm for the rest of your life.
Jennifer Anton | 28:47
This has been very illuminating. Thank you for your time. And I want to remind everyone, this is John Helms. He is a Dallas criminal defense lawyer, one of the best in the business, and we’re really lucky to have him with us today. Thank you, John.
John Helms | 29:00
Well, Thanks very much. Been a pleasure
source: https://johnhelms.attorney/family-violence-law-in-texas/
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