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State of Texas v. Akbar J.

This was a typical Assault of a Family Member prosecution. My client was arrested and charged after his wife called 911 alleging my client was being violent. I have often told clients that “Love means never having to call 911” because once a police officer makes the scene on an assault complaint, somebody is going to jail. The only issue is whether it will be a felony or misdemeanor. In my client's case, it was a misdemeanor.

My client's wife had found text messages on his phone which led her to believe he wasn't being faithful. She confronted him. Loudly. As client reached to get his phone, the two of them made contact. After a brief struggle, he took his phone back and erased the messages in front of his wife. She made accusations and he said mean things back to her. This is when she went into the bedroom and decided to get his attention. She called 911.

When the police arrived, my client explained that he didn't strike his wife. He was arrested anyway and brought down to the Harris County jail. Eighteen hours later he was dragged in front of a magistrate and served a Magistrate's Order of Emergency Protection(MOEP). He was informed that he could not go home for 61 days.

The next day, my client's wife called me. She was devastated.  She had been informed that my client could not come home. She told me she wanted to “drop” the charges. I told her that the State had filed the charges, not her, and only the State could dismiss. I told her that the State would call her in time, and she needed to be honest with them about what happened. She promised she would.

My client visited me for the first time two days later. He didn't understand why he was in the position he was in. He explained that any contact with his wife was incidental and that she wanted to “drop”. I told him that I had spoken with her already and explained the process to him. I told him that I believed his case should be dismissed, and we would work towards that end. I warned him that it would likely be several months before the case was resolved. The first step would be to get him back home.

The first court date was the Friday after my client's arrest. I arranged for my client's wife to be present. She had still not been contacted by the prosecution and I wanted her available when I discussed the MOEP with the Judge. In court, I approached the Judge and informed her that my client's wife did not want the MOEP imposed. I told the Judge that the complainant was present if she wanted to verify that fact. The Judge trusted me without testimony and amended the MOEP to allow contact. For the first time in a week, my client and his wife were able to hug each other.

Prosecutors walk a difficult tightrope in family assault cases. They are aware that some accusations are false or overblown, but they also know that sometimes wives are pressured to make the case go away by an accused spouse, either by guilt or fear of further violence. Prosecutors usually err on the side of caution and seek to protect the presumed victim by proceeding with the prosecution despite the wishes of the complainant. In cases like this, the case is not dismissed until the prosecution is convinced that the case cannot be made. This is what happened in my client's case.

In the ensuing eight months, we went to court seven times. I obtained the evidence accumulated in the case through discovery. This included a video from a body worn cam made by the investigating officer. Also obtained was the 911 call, which was significant. In the call, my client's wife was very calm in the phone call and was vague about the actual contact made. She was not as vague in her conversation with the investigating officer. Twice she told him that my client hit her in the face.

During the eight months we went to court, my client's wife told the prosecution repeatedly that she didn't want to testify. In one conversation she told them that the contact with her face was accidental. In another conversation, which was had after the case was transferred to the Family Violence division of the Harris County District Attorney's office, she was not so specific. I knew that she was concerned about being prosecuted for lying to the officer, and although I tried to ally her concerns in that area, she was not convinced.

Also, during these eight months my client and his wife had other arguments. This usually culminated in her threatening to call the prosecution, which would have derailed the negotiations I was having with the assistant district attorney in the Family Violence division. Thankfully this call was not made. On the last setting before we were to set the case for trial, the prosecutor offered a dismissal if my client completed an anger management course. He gratefully accepted.

Fortunately, six months after the dismissal we were able to negotiate an agreement from the District Attorney's office to expunge the arrest. The family has had no further trouble.

Practice area(s): Criminal Defense

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