By Jackson Heard
Assistant Criminal District Attorney in Kaufman County
Anyone who has spent any time prosecuting domestic violence cases knows that often, one of the biggest hurdles to winning the case at trial is the victim. Now, that feels like a terrible thing to say, but it is the truth.
Equally as true, however, is that victims often genuinely believe they have no other choice but to refuse to cooperate with us as we prosecute their abusers. Not only that, but uncooperative victims will also often feel, through victim blaming, minimization, and other forms of manipulation, that the assault was their fault and the only fair outcome in their abusers’ cases is a dismissal.
However, much to the dismay of abusers, prosecutors don’t automatically dismiss every case with an uncooperative victim. Our jobs would be a lot easier if we did, but we would also be violating our oath to do justice. Many cases with uncooperative victims will inevitably end in dismissal, but there is a careful calculus to be done in deciding whether to prosecute when a victim is uncooperative.
The case study in this article aims to serve as a guide for prosecutors in the difficult position of deciding whether to prosecute a defendant with an uncooperative victim and how to do so effectively. My first trial after joining the Special Victims Division in the Kaufman County District Attorney’s Office was one such case with an uncooperative victim.
Facts of the offense
The defendant was Jimmy Don Thompson. He was charged with assault family violence (impeding breath). The charge was enhanced with two prior pen trips, making his punishment range 25 years to 99 years or life. Even further, Thompson, 42 years old at the time of offense, had four total pen trips and two more state jail stints on top of that.[1] At one point in a jail call with his victim, Thompson remarked that he had spent more time behind bars since turning 18 than he had spent in the free world.
On the night of October 15, 2024, he was at a friend’s house with his common-law wife, Tabatha, and a group of others. Thompson was working on his truck, something he did seemingly compulsively (possibly due to the influence of drugs) when he got into an argument with another guest at the home. This verbal argument quickly escalated into a brawl, one that Thompson would lose. Tabatha got between the two men, but not before Thompson took some good licks to the face.
Enraged by this embarrassment, Thompson jumped into his truck and sped home, followed closely by Tabatha in a separate vehicle. Upon arriving home, Thompson kicked in his own door and barged into the house to clean his wounds. Tabatha entered shortly after and was welcomed with a familiar beratement. Thompson was angry with his wife about her role in the fight because she broke it up instead of picking up a steel pipe and whacking the other guy in the back of the head with it. Thompson told her that because this guy had messed up his face and because she didn’t have his back, she had to take his gun and go kill his assailant. When Tabatha refused, Thompson threw her onto the bed, jumped on top of her, and used both hands to strangle her. He strangled her for so long and with such force that she couldn’t keep her tongue in her mouth, and she was no longer able to swallow. Thompson left handprints on each side of Tabatha’s neck, and when he was done with her, he fled the scene, eventually crashing his truck in the next county over and having some friends pick him up.
Meanwhile, a friend of Tabatha’s convinced her to go to the hospital and gave her a ride. Once there, the staff started treating her and called police. When Sergeant Sabrina Martinez with the Crandall Police Department arrived at the hospital, Tabatha reluctantly told her everything that had happened, but she stressed that she did not want Thompson prosecuted, that she just wanted protection. Sgt. Martinez took down everything she was told, safety-planned with Tabatha, and had another officer posted near their home in case Thompson came back.
Sgt. Martinez also informed Tabatha that, over her objection, she planned to charge Thompson for the strangulation and get a warrant for his arrest. Sgt. Martinez did just that. However, Thompson wouldn’t be arrested on that warrant for almost a month. In that month, Thompson and Tabatha lived together the entire time and were able to discuss what they would say and do if and when he got arrested.
Affidavit of non-prosecution and its implications
Thompson eventually did get arrested. Within days of his arrest and before the agency even submitted the case to us, Tabatha came to our office to sign an affidavit of non-prosecution (ANP).[2] In her affidavit, Tabatha wrote that she did not want to pursue charges and that she only told the police that Thompson attacked her because she found out he was cheating on her and she was angry. She also wrote that she was actually attacked by the same man who fought Thompson.[3] She said that while she was trying to break up the fight, the man grabbed her by the throat and assaulted her. Finally, she wrote that upon Thompson’s release, they planned to pursue counseling.[4]
After signing the ANP, Tabatha called our office multiple times to see whether we had received the case and ask which prosecutor it was assigned to. Eventually, my predecessor received the case and, after reviewing it and speaking to Tabatha, decided to indict it and offer Thompson eight years in TDCJ (the Texas Department of Criminal Justice). I then inherited the case, and on my first setting with it, Thompson’s attorney let me know that if the offer was prison time, Thompson wanted a trial. I stuck to the eight-year offer and returned to my office to figure out how to prove this case.
Body-worn camera
My first concern was figuring out how to get Tabatha’s story out without violating the rule against hearsay or the Confrontation Clause. I did not expect her to show at trial, and even if she did, I didn’t expect her to tell the truth, so I needed to find a way to get her original telling of the assault to the jury. The first break I got was that the officer in this case, Sgt. Martinez, responded to Tabatha’s hospital room. While Sgt. Martinez was with Tabatha, the doctor came in, and Martinez stepped aside so the doctor could examine and speak with Tabatha. In the presence of Martinez, Tabatha told the doctor everything that had happened and detailed her injuries. The officer captured almost the entire interaction on her body-worn camera.
That video-recorded interaction between Tabatha and the doctor could come in at trial because her statements to the doctor were for the purpose of medical diagnosis and treatment[5]—they were not testimonial for the purposes of the Confrontation Clause because she was not making them to see Thompson prosecuted. Despite what defense attorneys will argue, the fact that a police officer was merely present during a statement made for the purpose of medical diagnosis or during a non-confrontational statement does not change the nature of the statement. There is no rule that says a statement is confrontational just because a police officer is listening to it.[6]
Medical records
I acknowledge that it was a great stroke of luck to have a bodycam recording while my victim spoke to her doctor, but other documentation can work just as well. Medical records are often chock-full of useful information. A lot of times, a victim may describe the assault to a medical professional in the hospital who will then add those details to the victim’s chart.
In this case, the medical records reflected what Tabatha had told the doctor: that earlier that night, her husband, Jimmy Don Thompson, strangled her in their home in Kaufman County, then he fled. Courts have routinely ruled that the details of an assault relayed to medical professionals, including statements identifying the assailant, are statements for the purposes of medical diagnosis and treatment and they are not considered hearsay under Texas Rule of Evidence 803(4).
If medical records from the hospital don’t have what you need, find out how the victim got to the hospital. If she came by ambulance, get those records—they’re often even better than in-hospital records because emergency medical personnel arrive on scene right after an assault has occurred, when the victim is solely focused on seeking help and hasn’t yet considered that she needs to lie to protect an abuser.
Even if medical records don’t have a smoking gun naming the defendant as the assailant, don’t write them off. They can still help prove other elements of the crime. In addition to describing the victim’s injuries, they generally include the date of the offense, where it occurred, and names of the members of the victim’s family (often including the offender), all things prosecutors must prove to get a guilty verdict.
Now that I had figured out how I was going to get Tabatha’s original statement in, my next task was figuring out how to corroborate it and convince the jury it was truthful.
Photos
The easiest corroborating evidence is photos of the victim and her injuries. In this case, Sgt. Martinez got great pictures, including one of the right side of Tabatha’s neck, showing as clear as day long red finger-shaped marks.
Even if there are no visible injuries, photos can still be the key to telling the story. Look at pictures of a victim from the night of the assault and see if they corroborate what she told police. What is her demeanor like? Has she been crying? Does she appear in shock or angry? Further, what does the scene look like? Is it torn apart? Hastily cleaned? Is there damaged property? My point is that pictures are not just for documenting injuries; they can also be strong evidence that a victim is telling the truth about the circumstances surrounding the offense.
Now that I could get my victim’s statement into evidence with photos to corroborate it, I had a good foundation of a case-in-chief, but there was still much to be done. Although I roughly knew what Thompson was going to claim at trial, I was still largely in the dark.
But Tabatha wasn’t.
Meeting with an uncooperative victim
In cases where you know victims are uncooperative, it’s sometimes easy to brush them off. They’ve already made their wishes known; you may have already had a brief phone call with them or they’ve filed affidavits of non-prosecution, and you know they are going to come in and lie to you. Please resist the urge to blow off meeting such a victim in person. For one, having a heart-to-heart discussion, where you show this person you actually care and that you are going to go to bat for her, may change her mind and get her on your side. Second, and much more commonly, a victim may believe she can convince you of the story she and the defendant have cooked up and will lay it out for you in incredible detail. In this case, I had the latter kind of meeting.
As I said, after Tabatha signed her ANP, she called our office frequently to see if the case had been assigned to a prosecutor. Once it was assigned, she called often asking to meet with my predecessor. In Tabatha’s own words, she was “a headache.” My predecessor met with her once by phone to safety-plan and tell her that he believed he had enough evidence to move forward without her cooperation and that he would present the case to the grand jury. After that conversation and the case being indicted, Tabatha reached out much less frequently. That is, until she found out that my predecessor had left the office and I was the new prosecutor on the case. After that, my VAC, Kylie Conner, and I were bombarded with another flurry of calls and emails from her asking to meet with me. We set up a phone meeting so I could let her express her concerns, and I also scheduled a follow-up in-person meeting for after I had time to review the case in full.
At the in-person meeting a couple of weeks later, I, along with Kylie and my investigator, David Boykin, introduced ourselves, gave a brief overview of what to expect in the meeting, then just listened. I urge all of us to treat uncooperative victims this way, both for strategic reasons and because victims of domestic violence deserve respect even if they’re trapped deep in the cycle of violence. Don’t be dismissive or simply tell a victim how it’s going to be. Try to keep an open mind and let a victim do as much of the talking as she is willing to. This is true when we expect a victim to be truthful, and it’s especially true when we think a victim is lying. Remember: An uncooperative victim has likely coordinated this story with her abuser, so we want to hear as much of it as possible to grasp what the defendant’s story will be at trial.
Meeting a victim who is covering for an abuser with a receptive attitude makes her feel like you may be buying her story. That prompts her to provide even more details than she otherwise would to try to convince you even further. This is why it is critical to have a VAC or an investigator (or preferably both) in the room for these meetings. As a victim speaks to you, she is not just telling a story; she is also tipping the defense’s hand and locking in her testimony. If she takes the stand at trial and changes her story to something more believable, the investigator or VAC is on hand as an impeachment witness.
This approach worked well in the Thompson case. Tabatha spoke with us for probably an hour. She explained that she grew up in a household where domestic violence was present. She told us that Thompson had never hit her and explained in detail their version of events from the day of the assault. She provided us with photos of the injuries Thompson suffered in his fight and photos of his truck after he wrecked it that night. She insisted to us that those deep red marks on her neck came from the same man whom Thompson had fought the same evening. She told us that this other individual left those marks from grabbing her by the throat as she attempted to break up the fight, and that he didn’t have a hold of her for very long. She either couldn’t or wouldn’t name this man, but she claimed it was he who had assaulted her, not Thompson. She also told us that while Thompson was in the shower cleaning his wounds, she decided to go through his phone, discovered he was cheating, and in that moment decided, out of anger, she would tell the police that Thompson gave her those marks. Finally, she said that when she informed Thompson she was going to call police and claim he strangled her, he jumped in his truck and sped off.
There were several holes in this story and pieces that didn’t make any sense, but we didn’t stop her; we just let her keep talking because the more she talked, the clearer it was that her version of events was fabricated. Once she had said all she wanted to, we asked a few brief follow-up questions, safety-planned with her, and told her we would be in touch soon with an update.
Now that we knew what the defendant wanted to argue at trial, it was time to go about disproving the fabricated story.
Jail calls
What defendants say on jail calls can turn a coin-flip case into as close to a sure thing as we can get. That’s exactly what happened in this case. My predecessor had requested Thompson’s jail calls but didn’t receive them before leaving.[7] Once I got the calls, I knew we were headed for trial, so I dove in to see what I could find. It didn’t take long to strike gold. On the third call Thompson made after being booked into the Kaufman County Jail, he was explaining to Tabatha how they could get his charges dropped, and it devolved into a heated argument where Thompson lashed out and yelled, “That’s why I snatched you by the motherf—king throat!” Bingo! I immediately emailed Thompson’s attorney to bring that call to her attention and revoke my offer of eight years TDCJ. I later followed up with a new offer of 35 years.
Now, this is not the norm for jail calls; to get a confession on a jail call is rare. However, you don’t know if there’s a confession on the jail calls if you don’t listen to them. Second, jail calls are good for far more than just confessions. You may not get the smoking gun, but these calls will often set the scene of the victim’s relationship with her abuser.
That was true in this case as well. In the six months that Thompson was in custody awaiting trial, he called Tabatha thousands of times. They argued constantly, and throughout these arguments, Thompson would berate, belittle, blame, gaslight, and minimize. Although he could no longer physically abuse Tabatha, the verbal abuse and manipulation continued full speed ahead. Not only do these kinds of calls give prosecutors useful insight into a victim’s current relationship with the defendant, but also this kind of verbal abuse is admissible in court under Art. 38.371 of the Code of Criminal Procedure to show the nature of the relationship.
Not only that, but jail calls can be rife with witness tampering. In this case, on one call, Thompson dictated Tabatha’s affidavit of non-prosecution nearly word-for-word (including the part about counseling). On another, Thompson told her in detail what she needed to say in her meeting with me to get me to drop the charges. As we approached trial, he told her in yet another call that the only way for him to beat this case was for her not to come to court and to hide on the day of trial. These calls can be used to confront a victim if she takes the stand and decides to parrot the defendant’s made-up story, but they can also be used for another purpose.
Forfeiture by wrongdoing
Forfeiture by wrongdoing is found in Art. 38.49 of the Code of Criminal Procedure. It says that a party in a criminal action may not benefit from the absence of a witness if that party wrongfully procured that absence. If prosecutors can show by a preponderance of the evidence that a party wrongfully procured the absence of a witness, then that party forfeits hearsay and Confrontation Clause objections regarding statements made by the missing witness. Because Thompson had instructed Tabatha not to come to court, I had prepared a forfeiture by wrongdoing motion and was ready with stacks of caselaw to argue my motion on the morning of trial.
But in a case with an uncooperative victim, we must be prepared for anything. As I stood up to urge it the morning of trial, I scanned the gallery, and there was Tabatha. We asked the judge to appoint Tabatha an attorney to discuss the criminal liability she would be exposed to for lying on the stand, and she elected to invoke her Fifth Amendment right against self-incrimination and not testify.
Now that I had all the evidence together that I was going to present at trial, I needed help polishing it and presenting it in a way that was easy for my jury to accept and understand.
Expert witnesses
Expert witnesses are excellent resources for presenting uncooperative victim cases to juries. A good expert has a way of making the jury comfortable with dynamics and ideas they may never have had to grapple with personally. In this case, I decided I needed both a medical expert and a family violence dynamics expert. I am thankful there is someone in our area, nurse practitioner Elizabeth Wolf, who is both a forensic nurse and an expert on abuse dynamics. Before trial, I had Wolf review Tabatha’s medical records, the photos of her injuries, and the selection of abusive phone calls we planned to enter at trial.
On the medical side, Wolf explained the dangers of strangulation to the jury and laid out the complications that can come along with being strangled. She also told the jury that it is very common for strangulation not to leave any visible injuries, so the fact that a handprint was visible on Tabatha’s neck was notable. Finally, and best of all, she testified that the marks on Tabatha’s neck could not have been left from a quick grab but were most likely the result of sustained, long pressure that partially cut off the blood flow to Tabatha’s head. She explained her conclusions and the facts that led to them in a way that was easy for the jury to digest and left little room for the defense to push back.
On the family violence side, Wolf clearly laid out the cycle of abuse and the power and control wheel[8] and applied them to the facts of our case and to the behaviors she observed in the jail calls. Throughout the calls we played at trial, Thompson hit pretty much every slice of the power and control wheel, and Wolf explained each one and how it applied. She also spent a significant amount of time explaining why victims of domestic violence stay with their abusers and why they often don’t want to prosecute. As with the complicated medical issues, she broke down the psychology of a victim who stands by her abuser in a way that was easy for the jury to grasp.
Elizabeth Wolf is a gem, and there are many other experts across the state who can explain complex medical and psychological concepts in an easy-to-understand manner. If you’re having trouble finding one, check local crisis centers; they often have psychologists or people familiar with the psychology of abuse on staff who would be happy to testify. If there is a seasoned officer on your case who has experience with domestic violence victims and who is comfortable testifying, he can be your expert. For medical testimony, there is often a built-in expert. If the victim went to the hospital, she was most likely seen by a doctor who has the training to offer the medical opinions needed in court. Even if the doctor doesn’t have a specific memory of your case, you can still use him to parse through medical records and explain injuries on the stand. Having an expert like this can be what it takes to get a case across the finish line. If you don’t have such a person, it’s up to you to get the jury to understand these issues in the limited time allotted for closing arguments. While I’m sure many prosecutors can explain it, I went to law school instead of medical school for a reason. An expert in that field is much better at explaining it than I ever could be and will be much more convincing for a jury.
Wrapping up
Jimmy Don Thompson was ultimately found guilty at trial. He voluntarily absented himself from the punishment hearing where the jury heard from his ex-wife about the abuse she had suffered at his hand, his lengthy criminal history, and his association with the Peckerwood white supremacist gang. After deliberation, the jury sentenced him to 45 years in prison.
This case went from a toss-up to a big win because of the evidence we found and the strategy we formulated based on that evidence. It’s easy to see a domestic violence case with an uncooperative victim and throw your hands up, but I urge you: If you have a case where you think the victim or the public is in danger and you believe in the case but are worried about proving it, try following the steps we took here. Get creative, talk to everyone, and look everywhere. Something may turn up that flips the case around and allows you to get justice and provide safety for the victim and your community.
[1] Surprisingly, none of Thompson’s felony history was assaultive.
[2] Prosecutor offices treat ANPs differently, whether they will accept them, and what the effect of an ANP is. Our office allows victims to complete ANPs in our office, and we consider them when making decisions about the case, but they have no set or binding effect on the case.
[3] It’s important to note that an ANP or any statement where the victim calls herself a liar or recants is Brady material that needs to be turned over to the defense.
[4] Thompson had a parole hold that prevented him from bonding out while this case was pending.
[5] Texas Rule of Evidence 803(4); Murray v. State, 597 S.W.3d 964 (Tex. App.—Austin 2020, pet. ref’d).
[6] Russell v. State, 290 S.W.3d 387 (Tex. App.—Beaumont 2009, no pet.).
[7] In my office, we don’t have direct access to jail calls. Instead, we request them from our sheriff’s office.
[8] This article displays graphics of the cycle of abuse and the power and control wheel and explains them both: www.tdcaa.com/journal/surviving-the-storm-how-expert-witnesses-can-salvage-a-family-violence-case.