March-April 2011

Texas prosecutors’ first use of the Continuous Family Violence law

Montgomery County becomes the first to try a man under the new Continuous Family Violence statute. A prior pen trip plus chilling recorded jail conversations netted Bobby Joe Duke, Jr. 15 years in prison.

Adrienne E. Frazior

Assistant District ­Attorney in ­Montgomery County

“I don’t like to be mean to you. I hate to be mean to you.”

Those were the threatening words of Bobby Joe Duke, Jr. to his girlfriend, Mary Cox, in a recorded jail conversation. They had the implication of guilt I was looking for when I first heard them in my office days before Duke’s trial for Continuous Family Violence. They also sent shivers down my spine when I showed photos of Mary’s battered face as I played that same conversation to a jury in the January 10 trial.

Duke and his girlfriend, Mary, had known each other for 16 years and had been in a romantic relationship for the year preceding the May 2010 assault during which Duke beat Mary so badly she fled their Cleveland, Texas, home on foot. A passing motorist saw Mary’s beaten face as she tried to flag down help on the side of SH 105 and drove her to a nearby gas station. Mary pleaded with the Good Samaritan not to call 911 because Duke would kill Mary, but the driver replied that she was not afraid of Duke and called 911 to get Mary the medical attention she needed.

When paramedics arrived, they saw that Mary had a broken nose that had previously been put back into place, two black eyes, and bruises all up and down her left arm. She was transported to Conroe Regional Medical Center and released to the Montgomery County Women’s Shelter. She stayed at the shelter for nine days before she called Duke to come get her.

Less than 10 days later, another 911 call was placed by someone who had just met Mary. She had been staying at the Conroe Motel 6 with Duke when Charity Wesley saw her many bruises and struck up a conversation with her. When Duke began beating Mary the night of June 16 and threatened to kill her again, Mary snuck out and asked Wesley if she could stay in her room. Wesley told Mary to move her car around to the side of the building while Duke slept so that he would think she had left the motel. As Mary was driving the car with Wesley in the passenger seat, Duke jumped head first through the passenger-side window and began punching Mary in the chest. Wesley managed to get out of the car and call 911.

When Officer Garrett Wolfhagen of the Conroe Police Department arrived on the scene, he recognized Mary from a call he responded to at the women’s shelter just days after the first assault. There, he had seen her battered face and had asked one of the shelter employees what her story was. He learned that her boyfriend was responsible for the injuries. When he saw her again at the Motel 6, he noticed fresh bruising on her right arm, and she confirmed that Duke assaulted her both times. Duke was then arrested and charged with Continuous Family Violence.

Challenges ahead

In preparing for trial, we faced multiple obstacles, most of which were completely unrelated to the fact that this was what we believe to be the first Continuous Family Violence case to be tried in Texas. First, our victim, Mary Cox, was MIA. I met with her for the first time when she came to the DA’s office to file her affidavit of non-prosecution on December 3. When it was clear that she did not want to speak to me as the prosecutor on the case, victim assistance coordinator Pam Traylor stepped in. We had noticed that Mary’s cell phone was ringing constantly during the meeting, and Traylor casually asked who was calling. Mary told her, “It’s him. He wants me to get this done.” Traylor got Mary’s cell number, and we quickly made a request for all recorded jail calls to that number.

In those jail conversations, Duke could be heard pressuring Mary into signing the affidavit, even ordering her to miss work and hitchhike to the DA’s office. He threatened that he would “sign up for 10 years” if she didn’t get it done and that she would never see his face again. Mary delayed for several months but finally signed the affidavit a month before the trial date. Through those same jail conversations I learned that on January 3, just one day before docket call, Mary checked herself into a treatment center for depression. Duke’s response to hearing her tearful confession was, “Who’s going to put money on my books?” followed by a demand that she walk out of the center and get herself to the courthouse to testify that he never touched her.

In the preliminary stages of trial preparation, with the mounting problems surrounding our victim, we extended a minimum two-year offer to Duke. I was actually relieved when he rejected it because I knew then that I could be satisfied with whatever result we received in court.

As we got closer to trial, we were preparing to go forward without Mary. I was pretty certain her testimony would not be helpful to the State anyway because she had been so hostile during our meeting. In addition, I knew that she had been visiting Duke every week while he was incarcerated in the Montgomery County Jail as I had run into her once when I was leaving the facility. On the first day of trial, January 10, we made a last-ditch effort and reached out to the Waller County DA’s office because Mary’s last known address was in Waller County. An investigator went to the address, and there was a car on the front lawn with a For Sale sign on it. He called the number, and the property owner gave him the name of the treatment center Mary had checked into. A call to the treatment center revealed that Mary had been transferred to a lockdown facility in Houston because of a nervous breakdown that very day.

The trial

As expected, this was the main theme of the defense case: Where was Mary Cox? We faced numerous Crawford challenges and were unable to get in many of Mary’s statements to law enforcement at the scene of either assault. Ultimately we presented our case through other evidence, including the observations of officers who responded to each assault, 911 tapes, EMS records, and shelter workers who witnessed Mary’s injuries and behavior. Officer Wolfhagen gave us the best testimony because he had actually observed injuries from each assault and was the key in linking the assaults together.

We coupled this evidence with expert testimony about the cycle of violence. Gale Walker from the Montgomery County Women’s Center testified to the signs of domestic violence such as fear, minimizing of injuries, and lack of cooperation with prosecution. When jurors finally saw photos of Mary’s bruised, swollen face and heard her abuser dominate and control her on the recorded jail conversations, they understood why Mary Cox wasn’t in court to testify.

Probably the biggest challenge in any domestic violence case is getting the jury to care about your victim, particularly when it seems like the victim herself doesn’t care. This was my first assault case and also my first case with a victim. As a new prosecutor I started in a specialized unit and then transferred to the felony division. Having never prosecuted in a misdemeanor court, I never had the opportunity to try Class A assaults. Because of that, I listened to numerous other prosecutors’ war stories involving jurors who acquit because the victim isn’t sympathetic. This was certainly a challenge for us because Mary Cox had a drinking problem, and I knew that evidence would come out that she had been drinking each time she was assaulted. I knew the defense would use it to insinuate that she was either not credible or was somehow at fault for the assaults.

To combat this attack, we took a two-part approach. First, I voir dired heavily on the specific issues in our case: an unsympathetic victim and the public’s perceived apathy towards domestic violence. We did this through the “one courthouse for everyone” example: If jurors could agree that even someone with a long criminal history and a checkered past deserved the protection of our laws, then they could overlook the problems our victim had. To get our jury thinking about domestic violence as a community problem, I asked them about their experiences with domestic violence in their own lives. I gave examples to get them to consider, for example, the child who bullies their son or daughter at school and where this behavior is learned, or the neighbor who runs to their house in the middle of the night to call 911. They agreed that domestic violence is a community problem.

Second, we again relied on expert testimony on domestic violence to create a background for discussing the specific issues in our case. Gale Walker from the local women’s shelter testified that it is not uncommon to see victims of domestic abuse self-medicating with drugs or alcohol to cope with abuse. This gave our jury some context with which to understand Mary’s drinking. Our expert also gave us a great theme for punishment: On average it takes seven times before a victim of domestic violence leaves her abuser—or is killed.

The statute

Enacted in September 2009 pursuant to the passage of House Bill 2240 by Rep. Tryon Lewis (a former state district judge), the Continuous Family Violence statute helps prosecutors overcome some of the obstacles in the typical Class A assault family violence case. For example, jurors are able to hear evidence of multiple assaults so they can understand that domestic violence doesn’t happen in a vacuum of a solitary instance. By making two or more assaults on a family member in a 12-month period a third-degree felony, prosecutors can get lengthy sentences to send a message to their communities that domestic violence is taken seriously.

Modeled after the Continuous Sexual Abuse statute, Continuous Family Violence requires the State to prove every element of §22.01(a)(1) for each assault and that at least two assaults occurred within a 12-month span. However, jurors are not required to agree unanimously on the exact date each assault occurred, nor on what parts of the defendant’s conduct constituted the assault. Essentially, the statute gives latitude to jurors to disagree as to some of the evidence yet still convict.

In our case, we did not have the same type of evidence in the second assault at the Motel 6 as we did in the first assault at home. Because Mary had been transported to the hospital after the first assault, we had EMS and medical records to support her injuries; authorities at the womens’ shelter also took photos of her as part of their intake procedures the morning after the first assault. However, for the second assault, the 911 caller had—thankfully—called po-lice before the assault became as brutal as the first. Therefore, we did not have visible injuries or any type of records for medical treatment.

The good work of Officer Wolfhagen coupled with the broad language of the statute saved the day! At the scene of the second assault, Wolfhagen noted in his report and on video that he saw fresh bruising on her right arm and he asked Mary if Duke had caused it. In trial we directed the jury back to the EMS records indicating that her left arm was bruised in the first assault. Because of the statute’s wording, we were able to argue to the jury that even if they didn’t believe Duke had assaulted Mary in front of Charity Wesley that night at the motel, they could believe that he caused the bruising on her right arm in the days before Wesley called 911.

Some defense attorneys have expressed concern that the statute allows the State to introduce evidence of extraneous unadjudicated offenses, but this just demonstrates a misunderstanding of the law. (Defense counsel in our case did not even mention it, but I’ve heard others discuss it.) The introduction of evidence of multiple assaults is likened to evidence of multiple sexual acts under the Continuous Sexual Abuse statute and must be proved beyond a reasonable doubt. However, one significant difference in the statutes is the time restriction placed on each. Under the Continuous Family Violence statute, the State has to prove that the two assaults occurred within a 12-month period; there is no need to show that the two assaults occurred more than 30 days apart as there is under the Continuous Sexual Abuse statute.

In Duke’s case, jurors deliberated for two hours and returned a guilty verdict. 


Duke elected to go to the judge, the Honorable Lisa Michalk of the 221st District Court, for sentencing. I was satisfied that the evidence elicited at trial alone would support a lengthy sentence, but Duke had a prior felony conviction and 10-year sentence for robbery that enhanced the punishment range to a second-degree felony—a significantly higher enhancement than the 90-day minimum jail sentence that the robbery conviction would have provided for a mere Class A misdemeanor assault.

To get us into that upper range between 10 and 20 years, I asked the judge to consider the testimony of our witnesses who were affected by Duke’s violent behavior. I pointed her to the Montgomery County Women’s Shelter employee who testified that she was so traumatized by Mary Cox’s injuries that she contacted her supervisor for emotional support after finishing up Mary’s intake paperwork. I also pointed to the two independent and completely unbiased women who called 911. These were all people who demonstrated once again that domestic abuse is a community problem. Finally, I told the judge we know that it takes seven times before a victim leaves her batterer. I asked her “to decide how long it is before Bobby Joe Duke, Jr. assaults Mary Cox again or kills her.” The defense presented no evidence and argued again that Mary Cox wasn’t there to support the State’s case. The judge sentenced him to 15 years.

What we’ve learned

As prosecutors we are exposed to the seedy underbelly of society on a day-to-day basis, and we sometimes become immune to it. The average juror’s threshold for the pain and mistreatment of others is lower than the average prosecutor’s. While many people encouraged me to plead out this case because of our victim’s history of substance abuse and refusal to cooperate, the jury seemed to ignore these issues completely. It is important to remember that our jurors won’t always react to cases the way we do.

In a domestic violence case, victim assistance coordinators and prosecutors must work as a team. No one cares more about domestic violence than the victim assistance coordinators who meet with victims and accept the affidavits of non-prosecution every single day. It’s good practice for victim coordinators to take photos of victims when they come in to sign the affidavit. Often we do this only when we notice fresh bruising on a victim, but if the defendant is currently in jail (or actually adhering to an emergency protective order or conditions of bond) you may have a compelling picture to demonstrate to your jury what the victim looks like without the abuser in her life. When Mary Cox came in to sign her affidavit, she was almost unrecognizable from the photos after her assaults. Photos of a healed victim are just another way to show your jury the effects of domestic violence.

Also, ask victim coordinators to get current contact information from victims including a cell phone number, if possible. Victim coordinators are able to develop a close relationship with victims of domestic violence that can be difficult for the prosecutors on a case. Once you have the victim’s current phone number, request all the recorded jail calls to that number. If you are still relatively close to the date of the arrest, you may get great conversations where the defendant is apologizing to the victim. But even calls months after the arrest can be helpful if you set the stage for them with expert testimony about the control an abuser exercises over his victim. And, of course, calls pressuring the victim to sign the affidavit are worth their weight in gold.

When life returned to normal after the trial was concluded, Pam Traylor, our victim assistance coordinator, was returning voicemails when she discovered that Mary Cox had contacted her the day we finished punishment to see what the result was. I never doubted that she was subjected to terrible assaults at the defendant’s hands, but I did wonder why she didn’t support him at trial the way she had said she would in the jail conversations. This voicemail, plus the timing of her entrance into a treatment center, really shed light on what she was going through. It was clear to me at this point that Mary hadn’t really wanted this case to go away—she just couldn’t face it.

As prosecutors we want to present the cleanest, simplest case to a jury, but domestic violence is ugly and complicated. With the Continuous Family Violence statute, the legislature has given us a remarkable tool to break through the perceptions about family violence and show jurors that it doesn’t happen just once. The new law allows us to present the whole ugly picture because victims don’t call 911 the first time they get hit; they call only when their life is in danger. If we take these cases seriously, as the legislature has demonstrated we should, we can get tougher sentences to ensure that it doesn’t take seven times before a batterer is held accountable for his abuse.