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NO BAIL FOR REPEAT DOMESTIC VIOLENCE

Houston Criminal Defense Attorney John T. Floyd Discusses Denial of


Bail in a Family Violence Cases

The Texas Council on Family Violence reported there were 187,811


incidents of family violence in 2005 throughout the state. 143 of those
incidents resulted in the deaths of women by an intimate partner. That death
rate declined slightly in 2006 when 120 women were killed by an intimate
partner. It was these disturbing figures that prompted the 2007 Texas
Legislature to propose a constitutional amendment to Article I, Section 11,
of the Texas Constitution [right to bail] that would allow a court to deny bail
to those defendants who violate a previous court protective order or a
condition of bond in family violence cases. The amendment was put before
the voters as Proposition 13, and it was ratified by the electorate on
November 7, 2007. This constitutional amendment, which became effective
January 1, 2008, was codified as Texas Code of Criminal Procedure, Article
17.152 (2007) [Denial of Bail for Violation of Certain Court Orders or
Conditions of Bond in a Family Violence Case]. The statute provides:

“(a) In this article, ‘family violence’ has the meaning assigned by Section
71.004, Family Code.

”(b) Except as otherwise provided by Subsection (d), a person who commits


an offense under Section 25.07, Penal Code, related to a violation of a
condition of bond set in a family violence case and whose bail in the case
under Section 25.07, Penal Code, or in the family violence case is revoked
or forfeited for a violation of a condition of bond may be taken into custody
and, pending trial or other court proceedings, denied release on bail if
following a hearing a judge or magistrate determines by a preponderance of
the evidence that the person violated a condition of bond related to:

“(1) the safety of the victim of the offense under Section 25.07, Penal Code,
or the family violence case, as applicable; or
“(2) the safety of the community.

”(c) Except as otherwise provided by Subsection (d), a person who commits


an offense under Section 25.07, Penal Code, other than an offense related to
a violation of a condition of bond set in a family violence case, may be taken
into custody and, pending trial or other court proceedings, denied release on
bail if following a hearing a judge or magistrate determines by a
preponderance of the evidence that the person committed the offense.

”(d) A person who commits an offense under Section 25.07(a)(3), Penal


Code, may be held without bail under Subsection (b) or (c), as applicable,
only if following a hearing the judge or magistrate determines by a
preponderance of the evidence that the person went to or near the place
described in the order or condition of bond with the intent to commit or
threaten to commit:

“(1) family violence; or


”(2) an act in furtherance of an offense under Section 42.072, Penal Code.

”(e) In determining whether to deny release on bail under this article, the
judge or magistrate may consider:

“(1) the order or condition of bond;


”(2) the nature and circumstances of the alleged offense;
”(3) the relationship between the accused and the victim, including the
history of that relationship;
“(4) any criminal history of the accused; and
”(5) any other facts or circumstances relevant to a determination of whether
the accused poses an imminent threat of future family violence.

”(f) A person arrested for committing an offense under Section 25.07, Penal
Code, shall without unnecessary delay and after reasonable notice is given to
the attorney representing the state, but not later than 48 hours after the
person is arrested, be taken before a magistrate in accordance with Article
15.17. At that time, the magistrate shall conduct the hearing and make the
determination required by this article.”

Protective orders are issued in Texas pursuant to its Family Code and its
Code of Criminal Procedure, each having different purposes. The Court of
Criminal Appeals in Harvey v. State, 78 S.W.3d 368 (Tex.Crim.App. 2002)
set out how each protective order statute operates:

“Article 17.292 of the Code of Criminal Procedure applies to a defendant


who has been arrested for family violence or stalking. When a person is
arrested, the person who made the arrest or who has custody of the arrestee,
must have the arrestee taken before a magistrate who warns the arrestee of
his rights, appoints counsel or begins the process for appointment of
counsel, and admits the person to bail. Article 17.292 authorizes (and in
some cases, requires) the magistrate to issue an order for emergency
protection that prohibits the arrested party from performing the acts that are
specified in Section 25.07(a) of the Penal Code. The article requires service
of a copy of the order on the defendant in open court. Thus this procedure
for the issuance of the order requires that the person to whom the order
applies will have (or at least will have been given) notice of its terms.

“The Family Code procedures for a Texas court to render a protective order
require service of notice and a copy of the application as a prerequisite for a
protective order to be binding. ‘A court may render a protective order that is
binding on a respondent who does not attend a hearing if the respondent
received service of the application and notice of the hearing.’ § 85.006(a)

”Section 6.504 of the Family Code authorizes a court, ‘on the motion of a
party to a suit for dissolution of a marriage … [to] render a protective order
as provided by Subtitle B, Title 4.’ That subtitle contains the provisions for
protective orders, including Chapter 85, which regulates the issuance of
protective orders. The procedures under Section 6.504 of the Family Code
are, therefore, identical to those under Chapter 85 of the Family Code,
except for notice.

”If the application is filed as a motion in a suit for dissolution of a marriage


under Section 6.504, notice of the motion is given in the same manner as any
other motion in such a suit. [§82.043(e)] The party against whom a
protective order is sought will already have been served with citation (or
have waived service), and must be served with the motion under Rule of
Civil Procedure 21a.

”When issuance of a protective order is sought under Chapter 85 of the


Family Code, the notice requirements of Chapter 82 apply. The clerk of the
court must issue a notice that application for a protective order has been
filed. [§ 82.042(a)] ‘Each respondent to an application for protective order is
entitled to service of notice of an application for protective order.’ [§
82.043(a)] The notice informs the respondent, among other things, that if he
does not attend the hearing a protective order may be issued against him.
[§82.041(b)] The notice ‘must be served in the same manner as citation
under the Texas Rules of Civil Procedure, except that service by publication
is not authorized.” [§ 82.043(c)] The methods of citation, other than by
publication, are by delivery, by registered or certified mail, or (if those
methods have been unsuccessful) by another method authorized by the court.
[Tex.R.Civ.P. 106] If a respondent receives service within 48 hours before
the time set for the hearing, he is entitled to have the hearing rescheduled.
[§84.004].” Id., at 371-72.

Article 25.07(g) provides that a person who violates a protective order


issued under either the Family Code or Code of Criminal Procedure is guilty
of a “…Class A misdemeanor unless it is shown on the trial of the offense
that the defendant has previously been convicted under this section two or
more times or has violated the order or condition of bond by committing an
assault or the offense of stalking, in which event the offense is a third degree
felony.”

The Court of Criminal Appeals in Harvey pointed out that § 25.07 “ …


specifies the culpability requirement that a person act ‘knowingly or
intentionally’ in committing the acts by which the protective order is
violated. However, the definition of the offense fails to specify a culpable
mental state requirement relating to the violation of the protective order.
Therefore, Section 6.02 of the Penal Code must be considered and applied.
Id. § 6.02 (West 1994). If the definition of an offense does not prescribe a
culpable mental state, a culpable mental state is nevertheless required unless
the definition plainly dispenses with any mental element. Id. § 6.02(b).
Section 25.07 does not plainly dispense with a mental element for violation
of the protective order. Id. § 25.07. When a statute is silent about a culpable
mental state, there is a presumption that a culpable mental state is a required
element of the offense. See Aguirre v. State, 22 S.W.3d 463, 472 (Tex.
Crim. App.1999).” Id., at 370.

The Harvey court then outlined what must be established before a


conviction under § 25.07 can be sustained:

“Although the Family Code authorizes temporary, ex parte protective orders,


they are not included in Penal Code section 25.07(a), and will not authorize
conviction under that section. The Family Code contains two provisions that
authorize temporary, ex parte protective orders: Section 6.405, if the order is
sought as part of a pending suit for dissolution of marriage; and Chapter 83
for other applications. Penal Code section 25.07(a) incorporates only Section
6.504 and Chapter 85, both of which authorize binding orders only after
service ….
”Therefore, proof that an act was ‘in violation of an order issued under
Section 6.504 or Chapter 85, Family Code, [or] under Article 17.292, Code
of Criminal Procedure,’ as Penal Code 25.07(a) requires, must be proof of
either an order that was issued after service of a copy of the application and
notice under the Family Code, or an order that was issued by a magistrate
who warned the defendant of his rights after arrest and a copy of which was
given the defendant in open court. In all these cases a person would know
the terms of the order or would know that he was subject to the issuance of
such an order.

”The term ‘in violation of an order issued under Section 6.504 or Chapter
85, Family Code [or] under Article 17.292, Code of Criminal Procedure,’
must be construed in light of these procedural requirements. So construed,
the term means ‘in violation of an order that was issued under one of those
statutes at a proceeding that the defendant attended or at a hearing held after
the defendant received service of the application for a protective order and
notice of the hearing."

”A court's charge to the jury in the trial of a case of violation of protective


order should include a definition of the term ‘in violation of an order issued
under Section 6.504 or Chapter 85, Family Code [or] under Article 17.292,
Code of Criminal Procedure’ that is similar to the construction we have
given it.

”We have not overlooked the portion of Section 25.07(a) that applies to an
act that was ‘in violation of an order … issued by another jurisdiction as
provided by Chapter 88, Family Code.’ We think it likely that the laws of
other jurisdictions require similar notice provisions. If prosecution is brought
for violation of another jurisdiction's order that was issued without notice,
and if the defendant in such a case had no actual notice of the order, there
will be an issue whether such evidence establishes the offense. Today we
need only say that there is no such problem in this case.

”As we have construed the term ‘in violation of an order issued under
Section 6.504 or Chapter 85, Family Code [or] under Article 17.292, Code
of Criminal Procedure,’ it is in effect a requirement of a culpable mental
state for that element. Although we think it was not necessary for the Court
of Appeals to resort to Section 6.02(b) of the Penal Code, which deals with a
definition of an offense that does not prescribe a culpable mental state, we
agree with the Court of Appeals that the statute requires some knowledge of
the protective order.

”The State does not argue that the appellant could be held liable without
having some such knowledge of the order. It does say that the Court of
Appeals went too far in requiring that the appellant ‘knew its provisions.’
We think the State is right, for we find no such requirement in the
procedures for protective orders. The requirements are only that the
respondent be given the resources to learn the provisions; that is, that he be
given a copy of the order, or notice that an order has been applied for and
that a hearing will be held to decide whether it will be issued. The order is
nonetheless binding on the respondent who chooses not to read the order, or
who chooses not to read the notice and the application and not to attend the
hearing.

”The [jury] charge in this case correctly told the jury, ‘A person commits the
offense of violation of a protective order if, in violation of a protective order
issued after notice and hearing, the person knowingly or intentionally
commits family violence.’ This was the essence of the construction we have
given Section 25.07(a) of the Penal Code for orders issued under Chapter 85
of the Family Code.” Id., at 373-73 [emphasis original].

While the Harvey court found that the trial court’s jury charge was
incomplete because it failed to include an element of the offense, the court
ruled that error was harmless and defendant was not deprived a fair trial. Id.,
at 373. In line with Harvey, the following courts of appeal have found the
evidence legally and factually sufficient in § 25.07 cases:

• Although defendant argued that the evidence was legally and


factually insufficient to support his conviction because the State did
not establish that he threatened the complainant with imminent bodily
injury and used or exhibited a deadly weapon, defendant's threat was
not a future threat of bodily injury but was a present threat of
imminent bodily injury, and that he could have injured her by striking
her between the bars or by waiting for her to leave her home; thus,
there was sufficient evidence that he threatened the complainant with
imminent bodily injury. See: Robertson v. State, 175 S.W.3d 359
(Tex.App.-Houston [1st Dist.] 2004).
• Where defendant was convicted of violating an order for emergency
protection, defendant was responsible for knowing the contents of the
order, whether defendant read it or not; the clerk's testimony that the
signature on the order matched defendant's, sufficed for knowledge of
the order, and the two officers' testimony who responded to the scene
of defendant's beaten girlfriend, before and after the order, was
sufficient to establish the victim was the same person identified in the
order. See: Hernandez v. State, 2003 Tex. App. LEXIS 6190 (Tex.
App.-Houston [1st Dist.] 2003).

• It was not a defense to defendant's conviction for violating a


protective order under Tex. Penal Code Ann. § 25.07(f) that the
house that defendant entered while the victims were present, was not
the house identified in the protective order; thus, the variance
between the indictment and the proof was immaterial. See: Escobedo
v. State, 2006 Tex. App. LEXIS 6045 (Tex. App.-Fort Worth 2006).

• Evidence was factually and legally sufficient to sustain defendant's


conviction for violating a protective order; the evidence showed
defendant was aware of the order, and that he left a voice mail
message for the protected individual, threatening to harm her and her
child. See: Moreno v. State, 2003 Tex. App. LEXIS 5998 (Tex. App.-
San Antonio 2003).

• Evidence was legally and factually sufficient to support defendant's


conviction for violating a protective order because (1) the protective
order was issued by a district court during a divorce proceeding
pursuant to Tex. Fam. Code Ann. § 6.504; (2) from the complainant's
testimony and the locations she pointed out on an aerial map, the jury
was able to determine that defendant was within 200 feet of her
stepfather's house where the complainant was living; (3) there was no
contrary evidence that defendant was in the area of the house but
outside the protected 250-foot zone specified in the protective order;
(4) the complainant's half-sister saw defendant in her neighborhood
driving a white sport utility vehicle on the day of the incident, and,
later that day, a witness said that she saw a white sport utility vehicle
after she spotted defendant on the property where the complainant
was living; and (5) a rational trier of fact could have found that
defendant had determined that the complainant was living at her
stepfather's property and that he intentionally or knowingly went
there in violation of the protective order. See: Russell v. State, 2006
Tex. App. LEXIS 8866 (Tex. App.-Fort Worth 2006).

• Evidence was sufficient to support a finding that defendant's knife


constituted a deadly weapon for purposes of a conviction for
violating a protective order; by holding the knife so that his estranged
wife and daughter could see it while he threatened to slice them up,
defendant expressed an intent to use the knife to kill his family. See:
Black v. State, 2006 Tex. App. LEXIS 7823 (Tex. App.-Fort Worth
Aug. 31 2006).

The courts of appeal in the following cases have found situations where a
protective order should not have been issued:

• Where a child was pulled between two parties during an exchange, the
evidence was legally insufficient to support the trial court's issuance
of a protective order. The record contained no evidence that family
violence "was likely to occur in the future," as required by Tex. Fam.
Code Ann. § 85.001(a)(2). See: In the Interest of J.A.T., 2005 Tex.
App. LEXIS 6618 (Tex. App.- Corpus Christi 2005).

• Evidence was legally insufficient to support a protective order against


appellant where appellee failed to establish the second element
required by Tex. Fam. Code Ann. § 85.001(a) by presenting an
affidavit or testimony to show that family violence was likely to occur
in the future. See: De Jesus Gipson v. Huerta, 2003 Tex. App. LEXIS
6204 (Tex. App.-Corpus Christi 2003).

• Although a Texas trial court had temporary emergency jurisdiction


under Tex. Fam. Code Ann. § 152.204(a) to enter a temporary
protective order against a divorcing father limited in scope to
provisions that would ensure the physical safety of the divorcing
mother and the parties' children in a case in which Texas was not the
home state of the children so as to confer jurisdiction on the trial court
to enter a child custody determination under Tex. Fam. Code Ann. §
152.201(a), it was limited in taking any further action with regard to
the temporary protective order until it communicated with the
Michigan court in which the parties' divorce proceeding was pending
pursuant to Tex. Fam. Code Ann. §§ 152.204(c), 152.206(b), and its
failure to communicate with the appropriate Michigan court was error.
It was further error for the trial court to include in the protective order
any conditions directed to the father not reasonably related to
emergency protection from family violence, such as conditions
referring to property mutually owned or leased by the parties, the
awarding of child support payments to the mother, and the completion
of a battering intervention and prevention program and the reporting
of said completion to the trial court, because the trial court exceeded
the scope of its temporary jurisdiction. See: In the Interest of
M.G.M., 163 S.W.3d 191, 2005 Tex. App. LEXIS 2383 (Tex. App.-
Beaumont 2005).

• Protective order was dissolved where the record did not support a
finding that the former husband threatened the wife in such a manner
as to reasonably place her in fear of imminent physical harm or bodily
injury. The evidence presented to the trial court was in the nature of
harassment and at some point harassment could transform into an
active threat; however, the wife repeatedly admitted that the former
husband had never threatened her with physical harm, and the only
physical contact that occurred was caused by the wife's husband, in
response to the former husband's goading. See: Thompson v.
Thompson-O'Rear, 2004 Tex. App. LEXIS 5033 (Tex. App.-
Texarkana 2004).

Family violence by any social or legal barometer has devastating


consequences not just on the family unit but the very moral fabric of our
society. In his 1973 book, “A History of American Law,” Friedman
conducted an exhaustive study of American law, from its origins in the 13
colonies to the present day. He came to an inevitable conclusion.

“Despite a strong dash of history and idiosyncrasy,” Friedman wrote, “the


strongest ingredient in American law at any given time is the present:
current emotions, real economic interests, concrete political groups.”

Texas voters in November 2007 were certainly influenced by current social


emotions emanating from the crisis of family violence when they passed
Proposition 13. But the sanctity of the Constitution is never served when
amended in response to current social emotions. The result of Proposition 13
is that a court can now deny bail to a repeat family violence offender
charged pursuant to § 25.07. See: Tex. Code Crim. Proc. § 17.152. Denial
of bail should only be considered in the gravest of circumstances. It is truly
a travesty of justice to confine a person without bail waiting for a jury trial to
prove their innocence for a crime they did not commit. Only time will tell if
this was either a necessary or beneficial constitutional amendment.