Author Archives: Eric Benavides
Domestic Violence and how Texas Can Handle the Charges
I get calls all the time, and I get questions by my clients about why they or their loved ones are being charged with domestic violence (assault – family member) if they told the police that they did not want to press charges. Yes….the State of Texas can “pick up the charges”.
I have seen the same fact pattern over and over. A couple gets into an argument and someone calls the cops. When the police arrive, the person who called says, “he/she hit me”. The officers do their investigation and then ask the complainant if they want to press domestic violence charges. Many times they say no, but their loved one still gets charged with domestic violence. This confuses many people. What happens is the officer typically gets on the phone, calls one of the Assistant District Attorneys who is working intake, they explain to the ADA what they saw, and what they learned, and the ADA makes the decision whether to accept charges or not. So the decision of whether or not a person gets charged with domestic violence is ultimately up to the ADA.
This is hard to understand for a lot of people, and its easy to see why they are confused. I mean why should a person be charged if the complainant doesn’t want them to be?
The States Point of View on Domestic Violence Charges
The State feels that these cases are unique in the sense that the personal ties between the individuals can impact their judgment. They feel that many times individuals were assaulted, but don’t want their significant other to go to jail because they love them, or for many other reasons (fear, the fact that they make the money, etc).
You make think it’s impossible to prove a case without a complainant (and many times it is very tough), but the State can still use certain items (on a case by case basis) to try to prove their cases. Some of these items are:
- 911 calls
- Witness Statements
- Medical Records
- EMS Records
- Photographs of Injuries and Scene
- Recorded Video of Scene, etc
The fact of the matter is, sometimes the evidence that a person gives to an officer, is actually what gets the defendant charged in the end. This is even if they don’t want to press domestic violence charges.
This is a semi-complex area of law when the complaining witness is not available or unwilling to testify. Still, the short answer to the question of whether the State can go forward with charges when the complainant does not want to press domestic violence charges is…Yes.
Many Lawyers Like to Practice Law Only in Their Hometown, But I am an Attorney Anywhere in Texas
Today I went to a case in Fort Bend County, which is about a 45 minute drive from downtown Houston. A lot of Houston lawyers practice down there, but a lot of Houston lawyers refuse to leave downtown Houston. I get asked a ton, where do I practice law, so I figured I would answer that question here.
Bottom line, I practice law in Texas. I will do a case anywhere. Now realize, if you call me with a case in El Paso, I will quote you, but you probably are not going to like my fee. I would have to account for multiple airline fees, hotels, meals, rental cars, hours out of the office, etc. But I have worked all over Texas.
My main practice is Harris County. I am there on average 4-5 days a week.
Outside of Harris County
Other than Harris, generally, I practice most often in the following counties:
- Fort Bend County
- Brazoria County
- Montgomery County
- Galveston County
- Chambers County
- Liberty County
I also make it out to the following counties maybe a couple of times a year:
- Jefferson County
- San Jacinto County
- Polk County
- Walker County
- Grimes County
- Brazos County
- Washington County
- Austin County
- Waller County
- Colorado County
- Wharton County
- Matagorda County
Those are the most common counties that I get cases from. And it makes sense if you look at a county map, as those are the counties that are closest to Harris County. But I do get cases everywhere, so do not be afraid to call me and ask. For example, this past year I was successful in cases in San Antonio, Tyler, and Corpus Christi, so I will and do travel.
Klegberg County, Born and Raised
The last place that is close to my heart is Kingsville, TX. I was born and raised in Kingsville, TX which is Kleberg County, so I tend to get a lot of phone calls from there. And I find myself working as a criminal defense attorney in Kleberg County quite often. So if anyone ever needs a criminal defense lawyer in Kingsville,TX feel free to call me. My fees tend to be reasonable as I have family I can stay with, and I don’t typically charge my full travel amount as I can use the trip as an excuse to see my friends and family. It is always good to go back home, and I enjoy walking into the local courthouse that I drove past for 18 years.
So if you find yourself needing a lawyer in Texas call me at 713-222-2828. If I cannot help you I am sure that I can find someone in your area that can!
Some Options for Out of Towners Who Run into the Law While on Vacation
It’s probably not the best idea in the world to get in trouble when you are on vacation, or visiting another city. It makes it very hard on you both logistically and financially. I have run into this problem quite a bit as of late. On average I might get 1 or 2 cases a year from out of towner’s who either partied too hard, or made a dumb mistake while they were here. The problem ends of being that we lose a lot of potential options when you cannot commit yourself to living in Harris County.
Harris County Pre-Trial Diversion Program
Sometimes, especially for first offenders, there are programs available that can lead to dismissals. One of the programs, the pre-trial diversion program, requires individuals to complete all of their conditions in Harris County. A Pre-Trial diversion is a type of program that allows you to complete a probation-like program while your case is still open and pending, and allows you to earn a dismissal. Because the pre-trial diversion is a Harris County specific program, it cannot be transferred to another county (unlike some probations can be).
I had a client who lives 4 hours away, and while that isn’t too far, it’s just far enough to where it would make it tough to travel to Houston 2 or 3 times a month. Before, out of towner’s were not considered at all for the program, but I was told in this case that he is eligible for the program, but would have to commit to coming down for monthly meetings, random drug tests, community service, classes, etc in Harris County.
The Issues Around Living Far From Harris County
While this option is a no brainer for residents of Harris County and surrounding communities, it is a much tougher decision when you live out of town. To make it worse, you cannot transfer a probation that is 6 months (what he was being offered). So if he wanted to do a deferred adjudication to try to avoid a conviction, we actually would have had to ask to do MORE probation just to allow him to do his probation in his home town. My client has expressed interesting in just paying a fine because it is the easiest thing to do. That is the worst idea possible as it is a lifetime conviction, and something that will potentially keep an individual from getting jobs/apartments for the rest of their life.
It’s unfortunate that people feel stuck in these situations. It is never a good idea to get in trouble, but it’s a horrible idea to get into trouble far from home.
Texas being an “At the Time of Driving State” Can Make DWI Cases a Bit More Complex
Yesterday I got an interesting DWI case dismissed. When I first met with my client he had no clue why he was being charged with DWI. He asked me what the legal limit in Texas was and I told him .08. Well my client blew a .07 into the Intoxilyzer 5000, which is the breath test machine that was used in his case, hence his confusion.
So why would someone who blew UNDER the legal limit be charged with DWI?
Texas: An”At the Time of Driving State”
The problem is that Texas is an “at the time of driving state”. This means that what is really important is what was the blood alcohol level of an individual at the actual time he was driving. Sometimes it takes 30 minutes, but sometimes it takes hours for an individual to take a blood or a breath test after being arrested. So how can they prove what the BAC was at the time of driving? That’s the tough question, and bottom line is, they can’t. The State’s experts will always say, “all I can say is that the BAC was either higher, the same, or lower” at the time of driving.
Now sometimes, they will try to formulate a guess to what the BAC was, and it truly is a GUESS. They use what is called retrograde extrapolation. In basic terms, retrograde extrapolation is a mathematical process based on “science” that is used to try to figure out what the BAC was of a person at a certain time.
The problem that arises is that it is RARE that we know everything we need to know about a person to figure this out. They need things such as: time of first drink, time of last drink, when was the last time they ate, how much did they eat, what did they eat, etc. And those are just the basic items that need to be known. They also need to know everything about that person’s body, health, how they process food, alcohol, etc. It’s virtually impossible to have all of this data.
So as a lawyer I see DWI cases like this from time to time, and they are always a fight. Because there is absolutely zero percent chance that I would ever advice a client to take any sort of deal on a case where their blood or breath came back below the legal limit. In this particular DWI case there were no extrapolation facts. My client spoke Spanish, the officer spoke English, and the officer didn’t bother getting a Spanish speaking officer to interview him. On top of that he looked great doing the sobriety tests, so they could not prove that he lost the normal use of his mental or physical faculties (which are the other 2 ways besides <.08 to prove intoxication). It took much longer than expected, but my client walked out of the courtroom a happy man.
Clients Will Look at all Their Options Out of Fear of Going to Trial
Sometimes defendants feel they are innocent but plead guilty because they are scared to go to trial. Or sometimes they have a great case that they could potentially win, yet they decide to take a deal. This happens A TON, and as a defense attorney it stinks because we like to be in the courtroom, but we work for the client.
I had a case that I was working on for about half a year that was getting a bit old. The charge could potentially land my client in prison for 2-10 years. He was caught with an illegal item in his vehicle but claims that someone must have left it in there. This is a tough situation, because what happens on most of these cases is the defendant will bring an affidavit from someone saying, “that illegal item was mine, it wasn’t defendants”. The problem is, since so many people do this, the prosecutors never believe anyone. My client did in fact have one of these affidavits.
What are the Possible Outcomes?
So what do you do in this situation? I advised my client of his rights and what I thought his chances were if we went to trial. I told him the best offers that he was receiving from the district attorneys. He asked me my opinion and I told him I thought he had a good chance of winning, and that I thought a trial was a great option. He also asked me what would happen if he lost. As I am with all of my clients, I was truthful. I warned him that if he lost he could potentially be looking at a good amount of prison time because of his priors.
The Client’s Choice
My client slept on it and decided that he didn’t want to risk trial, and that he would accept the probation that they were offering him. I completely understand his choice, and we will never know whether that was the correct choice or not. But he is guaranteed to get probation and not end up in prison, and to him, that was better than even a small chance that he could go to prison. It’s easy for a lawyer to say, “let’s go to trial you have a great case.” But at the end of the day you have to put yourself in your client’s shoes and realize how scary it must be to make that decision, and take that risk.
So when clients decide to go to trial, a lawyer should do everything in their power to give them a great defense. But when a client decides to take a deal, a lawyer needs to respect that as well.
- 3rd Degree Felony – Pled to 2 years Deferred Adjudication
- Possession of Cocaine -Reset to research an interesting issue
- DWI – Reset to wait on blood results
- DWI – DISMISSED