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  • Writer's pictureBrad Thornton

Wilson County Criminal Defense Attorney: Can the victim drop charges in a family violence case?

As a criminal defense attorney with over a decade of experience, I have seen countless cases of family violence in my practice. One of the most common questions I receive from clients is whether a victim can drop charges in a family violence case. It's an understandable question, as the victim often plays a pivotal role in the prosecution's case. However, the answer is not as simple as a yes or no. In this blog post, we'll explore the intricacies of family violence cases and the role of the victim, and answer the question of whether a victim can drop charges. Whether you're a victim of family violence or a defendant facing charges, it's important to understand the legal implications of these cases and seek the guidance of an experienced criminal defense attorney.

What is Family Violence in Texas

Family violence is defined by Texas law as an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the victim in fear of imminent harm.

In Texas, a "family" is defined as individuals related by blood or marriage, former spouses, foster parents and foster children, or those who have a child in common, regardless of whether they have ever lived together. The term "household" includes individuals who are living together in the same dwelling unit, even if they are not related by blood or marriage.

Additionally, Texas law recognizes "dating violence," which is defined as an assault by an individual with whom the victim has had a dating relationship.. A "dating relationship" means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature.

A victim of family violence can be a spouse, parent, child, sibling, or any other person related by blood or marriage, as well as someone with whom the victim has had a dating relationship or even simply lived with in the same household.

What happens if the victim recants their testimony in a family violence case?

In cases of family violence, victims may initially report abuse to law enforcement, but later decide to recant their statements. However, recanting does not necessarily mean that the charges will be dropped. In fact, in some cases, victims may face criminal charges for false reporting or perjury if they recant their statements or provide false testimony in court.

Under Texas law, it is a crime to knowingly make a false report to a law enforcement officer about a crime that did not occur. This means that if a victim initially reports abuse but later recants and admits that the abuse did not occur, they could potentially be charged with false reporting. Similarly, if a victim provides false testimony in court, they could be charged with perjury, which is a felony offense.

Can the victim drop charges in a family violence case?

The short answer is no, a victim cannot technically drop charges in a family violence case. In Texas, it's the state that brings criminal charges against the defendant, not the victim. The victim's role is to report the crime and cooperate with law enforcement and prosecutors during the investigation and trial.

That being said, the prosecutor's decision to file charges in a family violence case is not solely based on the victim's wishes. The prosecutor will consider the evidence and the law, as well as the victim's safety and well-being. If the prosecutor believes that there is enough evidence to prove the defendant's guilt, they may choose to proceed with the case, even if the victim no longer wishes to pursue charges.

On the other hand, if the victim refuses to testify or recants their previous statements, it may be more difficult for the prosecutor to prove their case. Generally, the accused in a criminal case has a right to confront any witness against him and also, if the victim doesn’t testify, out of court statements that they made are likely to be considered hearsay and inadmissible.

How the prosecutor proves a family violence case if the victim doesn’t testify.

Even though the hearsay is generally not allowed in trial and the accused

has a right to have the accusations made in open court, there are several exceptions to this rule that frequently come up in family violence trials in Texas.

EMS and Medical Records

In Texas family violence cases, EMS and medical records may be admissible in court under the "statement made for medical treatment" exception to the hearsay rule.

Under this exception, a statement made by a victim to a medical professional for the purpose of receiving medical treatment is considered reliable and admissible in court, even though it is hearsay. This is because such statements are made spontaneously and without any expectation of their use in court, and are therefore considered to be trustworthy.

In family violence cases, EMS personnel and medical professionals who treat victims of abuse often document statements made by the victim regarding the cause and nature of their injuries. These statements can include descriptions of the incident, the perpetrator, and any threats or other abusive behavior.

911 Calls

911 calls are almost always admissible in family violence cases because of the present sense impression and excited utterance exceptions to the hearsay rule.

The present sense exception allows for the admission of statements made by a person describing an event or condition as it was happening or immediately thereafter. 911 calls can fall under this exception because they are often made while the abuse is ongoing or immediately after it has occurred, and the caller is describing what is happening in real-time.

The excited utterance exception allows for the admission of statements made by a person under the stress of an exciting event, which can include a family violence incident. The idea behind this exception is that the emotional state of the person making the statement ensures the reliability of the statement because it is made without the opportunity for reflection or manipulation.

Forfeiture by Wrongdoing

Forfeiture by wrongdoing is a legal doctrine that allows for the admission of hearsay evidence that would otherwise be inadmissible under the hearsay rule when the defendant has wrongfully caused the unavailability of the witness who made the statement.

Under this doctrine, a defendant cannot benefit from their own wrongdoing by preventing a witness from testifying or producing evidence in court. If the defendant has engaged in wrongdoing that has resulted in the unavailability of a witness, such as intimidating or threatening a victim or witness to not testify, then the court may allow hearsay evidence that the witness would have otherwise testified to be admitted as evidence against the defendant.

The prosecution has the burden of proving that the defendant engaged in wrongdoing that resulted in the unavailability of the witness. Additionally, the hearsay statements must be relevant to the case and not unduly prejudicial to the defendant.

Third-Party Witnesses

Third-party witnesses can testify about the events they witnessed, such as the abuse or violence that occurred, to provide additional evidence to support the victim's allegations.

Third-party witnesses can include friends, family members, neighbors, or anyone who observed the events or their aftermath. These witnesses can testify about what they saw, heard, or otherwise observed, such as signs of physical injury or distress in the victim, the defendant's behavior or actions, or anything else that may be relevant to the case.

Importance of Seeking an Attorney

If you are facing a family violence charge in Texas, it's critical to seek legal counsel from an experienced criminal defense attorney. Family violence cases can be complex and emotionally charged, and the consequences of a conviction can be severe, including potential jail time, fines, and a criminal record. The victim alone cannot make the charges go away and taking the right path for your specific case can only happen with the guidance of experienced counsel.

A skilled attorney can help you understand your legal rights, navigate the court system, and build a strong defense to protect your future. Whether you are seeking to have charges dropped, negotiate a plea bargain, or fight the charges at trial, an attorney can provide you with the guidance and representation you need to achieve the best possible outcome.

Wilson County Criminal Defense Attorney

At Thornton Criminal Defense PLLC, we have over 12 years of experience handling family violence cases in Texas. As a former chief prosecutor and board-certified criminal law attorney, Brad Thornton has the knowledge and skills needed to help you navigate the complex legal system and protect your rights.

We understand the emotional and legal complexities involved in family violence cases, and we are dedicated to providing our clients with compassionate, effective representation. If you are facing a family violence charge, contact us today at 210-439-5627 to schedule a free consultation and learn how we can help you protect your future.

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Attorney Brad Thornton is a highly experienced and Board-Certified criminal defense lawyer. With his background as a former Chief Prosecutor, he has a unique understanding of the criminal justice system and is able to provide comprehensive and effective representation to his clients. He is also deeply committed to ensuring that all individuals receive fair treatment in court, regardless of their background or circumstances.

Brad Thornton is dedicated to helping his clients achieve the best possible outcome for their case, whether it is in San Antonio or elsewhere in South Texas. He recognizes the stress and anxiety that can come with being accused of a crime, and approaches his clients with compassion while keeping them informed at every step of the process. His knowledge and experience make him a strong advocate for his clients.

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© 2023 by Thornton Criminal Defense, PLLC. 

Atascosa County Criminal Defense Attorney

San Antonio Office:

111 Soledad, Suite 401

San Antonio, Texas 78205

Tel: 210-439-5627

Atascosa Office:

216 N Bryant St

Pleasanton, Texas 78064

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