Denying bail for family violence offenders

2008
Texas prosecutors have a tremendous new tool to protect victims of family violence. Wading through the steps will be well worth it.

Effective January 1, 2008, a family violence offender may be denied bail after violating a protective order or bond condition in a family violence case.1 Other changes to PC §25.07 (Violation of Protective Order) and CCP art. 17.292 dramatically broaden the option for no-bail requests and is a major change for trying family violence cases.2

Many prosecutors have been scratching their heads about how to use this new tool; every path to a no-bail ruling requires a hearing, but when and what rules apply is confusing. Practical application of the new no-bail statutes will require some ingenuity and good judgment on our part.

No-bail requests will not be appropriate for every family violence defendant; we must exercise this option carefully and consider which defendants have the highest potential to inflict lethal harm. Also remember that not every defendant requires a setting of no-bail to remain in custody.

Changes to CCP art. 17.292: emergency protective orders

Defendants accused of committing sexual assault or aggravated sexual assault may now be subject to an Emergency Protective Order (EPO). As with stalking defendants, there is no relationship requirement between the defendant and victim for an EPO. Now the protective order process for victims of sexual assault parallels the process for victims of family violence. After an offense occurs, an EPO that is criminally enforceable can be entered while a victim decides whether to pursue a civil protective order.3

EPOs are also available for victims of sexual assault of a child. One concern for these victims is including their names and personal information in the public record and providing a defendant with more information than he already has about the child. If CPS is involved and pursuing other legal remedies, then avoid working at cross-purposes by considering other alternatives, such as a bond condition, that afford similar protection without the formality of an order.

Changes to PC §25.07: violations of a protective order (VPO)

Bond conditions in a family violence case (if they relate to the safety of the victim or community) and Temporary Ex Parte Civil Protective Orders (TExPOs) have been added to the list of protective orders (POs) whose violations can be criminally enforceable under Penal Code §25.07. The TExPO must have been served on the defendant to be enforceable.4

New CCP art. 17.152: denial of bail5

Every defendant who violates a PO is eligible to be denied bail. The statute requires a magistrate to consider everyone from the first-time criminal defendant who drives by his victim’s workplace, to the offender with multiple FV convictions who commits aggravated assault, for a denial of bail. The beauty of this broad expanse of defendants is that the first defendant may be the most appropriate for no-bail based on the circumstances.

A defendant must have committed an act prohibited by PC §25.07 to trigger CCP art. 17.152 to make no-bail an option. A denial of bail can occur only after a hearing. There are three categories of conduct that must be proven to deny bail. Each category of conduct—how the defendant committed the violation—requires a different showing at the hearing. The burden for all hearings under CCP art. 17.152 is a preponderance.

The categories are:
1) if the defendant committed a VPO offense under PC §25.07 by violating a bond condition in a family violence case, then the State must show that the bond has been revoked or forfeited for this violation, that the defendant violated the bond condition, and that the bond condition was related to the safety of the victim (of the family violence case) or the safety of the community.
2) if the defendant committed VPO other than by violating a bond condition, then the State must prove that new VPO offense.
3) if the defendant committed VPO, including violating a bond condition, by going to or near a protected place (home, work, or school), then the State must prove the conduct and prove that the defendant went to the place with the intent to threaten or commit family violence or stalking.

An example of the first category is a defendant on bond for a Class A misdemeanor family violence assault with a condition to stay away from and have no contact with the victim. If the defendant calls the victim, he violates the “no contact” bond condition. The State would have to prove A) that the bond was revoked for this violation (note: The State would have to file that motion and get the order before making this motion for no-bail); B) that the defendant violated the bond condition; and C) that the bond condition was related to the safety of the victim or community. This category will be most helpful when there are no other protective orders in place.

An example of the second category is a defendant who is subject to a PO and violates that order by possessing a firearm. The State would have to prove the elements of that VPO: A) the defendant was subject to a PO, B) the defendant possessed a firearm, C) possessing a firearm violated the order, and D) the defendant knew possessing a firearm violated the order.

An example of the third category is a defendant who is subject to a PO and appears at the residence of the protected person. The State would have to prove the VPO as in example No. 2 (above) and prove that the defendant went there with the intent to commit family violence or stalking. “Commit family violence” is a new phrase in our statutes, so we return to Family Code §71.004 to figure what it means. Simply put, the defendant went to the protected person’s home to assault or threaten to assault her. The State could alternatively show that the defendant went there with the intent to commit stalking; however, proving stalking adds a lot of elements to this example. (Remember that when a PO is in place, an accumulation of misdemeanor VPOs usually meets the elements of VPO by stalking.)

Now let’s consider a more realistic example. The defendant is on bond for misdemeanor assault (FV) with a condition to stay away from and have no contact with the victim. The victim has applied for a PO, and the defendant has been served with the TExPO. The defendant goes to the victim’s home, assaults her, and threatens to kill her children.

1) For going to the residence, the defendant may be charged with either VPO of the bond condition or VPO of the TExPO, both Class A misdemeanors. While PC §25.07(c) permits the same conduct to be charged as two offenses, it is more practical and conservative to allege these facts as one offense or the other to avoid double jeopardy implications.6
2) For the assault, the defendant may be charged with violation of the TExPO by assault, a third-degree felony.
3) For the threat to the victim’s children, the defendant may be charged with either (but not both, for the same reason in No. 1, above) VPO of bond condition (to have no contact) or VPO of TExPO (no threatening or harassing communication), also both Class A misdemeanors.7

The category with the fewest facts to prove at a no-bail hearing is a plain VPO, not the bond condition or the “go to or near” violation. In this scenario we have the VPO by assault and the VPO for threatening or harassing communication. These should be the simplest to prove and have no additional facts for the judge to find before issuing a no-bail ruling.

The no-bail hearing: when and how

Hearings requesting no-bail are not new. These hearings will be like those we already do to deny bail for bail jumping, committing a particular type of offense, or commission of a subsequent felony. The rules of evidence, including the 6th Amendment (and all of the difficulties it may present in a FV case) will apply. Art. 17.152(e) lists what the magistrate may consider: the order or condition of bond, circumstances of the offense, relationship of the defendant and victim, and the defendant’s criminal history. The list includes a catch-all for “any other facts or circumstances” relevant to the defendant being an imminent threat.

I recognize that having a victim testify in this circumstance can be daunting for many reasons. The victim may not be cooperative or may already have recanted. She may also be truly afraid of the defendant. If the State seeks to enter otherwise admissible hearsay, the declarant must be available for cross-examination unless the hearsay is non-testimonial or the defendant has forfeited his right by wrongdoing.8 If the declarant must testify at this hearing, it may satisfy the defendant’s right to confrontation at trial if the defendant has an opportunity to cross-examine the declarant. Many prosecutors are already using this tactic in bond-reduction hearings to great advantage.

The most difficult section of this statute to put into practice is the timing of the hearing. Subsection (f) instructs the magistrate that any person arrested for an offense under PC §25.07 “shall without unnecessary delay … conduct the hearing and make the determination required.” The statute requires the hearing to be conducted not later than 48 hours after arrest, and the court is required to notify the State and defense counsel before the hearing. Yikes!

The statute seems to contemplate that the magistrate will do this automatically without a motion from the State. Will law enforcement request it? The bright side may be that there seems to be no prohibition on making a motion later even if a magistrate already set bail. Also, the defendant whom the prosecution wants to be held without bail might be in your sights before he is arrested for the eligible offense because you are probably already working with law enforcement and may be looking for the defendant on other warrants.

Procedure

We should start with a written motion alleging the facts making the defendant eligible for a denial of bail and attaching any public records, such as the probable cause affidavit for the new offense, to the motion. Be sure to provide notice to opposing counsel; then you should receive a setting for the hearing. At the hearing, the State will have the burden of proof, so have witnesses ready and any certified public records you may need, such as the protective order or the bond that set the condition that was violated.9 After the State has established the protective order or bond condition that was violated, prove the conduct committed by the defendant that violated the PO or bond condition. Witnesses may include the victim, law enforcement officers, or civilian witnesses. For “go to” or “go near” violations, an aerial photograph to scale will help show the defendant was within the 200-yard radius of the protected area. (Remember that if you are using Google Earth, you should request permission to use the copyrighted material and may have to pay a fee. Most large urban counties already pay for access to satellite photos you can use.)

Other factors the judge may consider include the relationship of the defendant and victim and the defendant’s criminal history. To prove the relationship of the defendant to the victim, you are not limited to the victim’s testimony. You may choose to call a family member or friend to show the relationship. For criminal history, have the judgments from the defendant’s prior convictions just as you would in the punishment phase of a trial. You will need a fingerprint expert for comparison of the prints if the defendant will not stipulate to those prior convictions. For a defendant with many charges but no convictions, bring the booking prints, arrest sheets, and charging instruments from the priors. Be on the lookout for other information that can help you, including the defendant’s jail calls, visitors, and mail. You will be amazed what you can find from these sources.

All in all, this new tool will be just the right remedy for just the right defendant and victim, so keep an eye out for these motions as a possibility.

Endnotes

1 Credit for these changes goes to Rep. Joe Straus (R-San Antonio) and Sen. Jeff Wentworth (R-San Antonio), who filed and passed HB 3692 and HJR 6 at the request of Bexar County Criminal District Attorney Susan Reed.
2 “Family violence” has the meaning in the Family Code §71.004:  “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 reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault but does not include defensive measures. It does include dating relationships.”
3 Remember that CCP ch. 7A permits a victim of sexual assault to pursue a civil protective order under Ch. 85 of the Family Code in the criminal case, regardless of the relationship between the defendant and victim. CCP art. 7A.07 permits these orders to have a lifetime duration if the court finds there was a threat that reasonably places the victim in fear of further harm from the defendant.
4 I hope you are served by a great constable like we have in Travis County; he has real-time postings on his website and email notification of when TExPOs and POs are served.
5 This statute is enabled by amendments to the Texas Constitution Art. I, §11b for violating bond conditions, and §11c for violating a protective order.
6 Bigon v. State, 2008 Tex.Crim.App. LEXIS 1 (No. PD-1769-06, January 16, 2008) (because multiple convictions for the same conduct violate double-jeopardy, only one conviction will be upheld)
7 An interesting idea, particularly if no other felony VPO is available, would be to consider this incident stalking because the defendant placed the victim in fear of serious bodily injury to or death of another person. Add this incident with another (to satisfy the requirement that this conduct occurs “on two or more occasions”), and the defendant could be charged with VPO by stalking, a third-degree felony.
8 Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); Davis v. Washington and Hammon v. Indiana, 547 US __, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).
9 As with trials for a Violation of Protective Order, the State must prove the defendant had been served with the PO and knew that this conduct violated the order. See Harvey v. State, 78 S.W.3d 368 (Tex. Crim. App. 2002). Particularly for violation of a TExPO, the State must prove the defendant was served. If there is no public record on file yet, then call the officer who completed service as a witness.