Can I Argue Self-Defense in a Domestic Violence Case?

December 9th, 2019 by Tad Nelson in Domestic Violence

Domestic violence cases often start out as a fight between spouses or partners. Prosecutors may charge one party as the sole aggressor. But what if the defendant was actually the victim? Can a defendant in a domestic violence case argue they were acting in self-defense?

Houston Appeals Court Rejects Self-Defense Instruction Due to Lack of Evidence

To help answer these questions, it is useful to look at a recent decision from the Texas First District Court of Appeals, Gao v. State. This case began with a fight between the defendant and his wife. Police responded to a 911 call from a friend of the wife. According to the wife’s testimony at trial, the fight began when she discovered the defendant had lied to her about his prior marriages. As the fight escalated, the wife said the defendant “became angry, pulled her off the couch, and threw her on the ground.” The defendant then proceeded to kick her in the legs and hips “multiple times.”

Prosecutors charged the defendant with “assault causing bodily injury family violence.” The defendant exercised his constitutional right not to testify. The jury found him guilty and sentenced him to 21 days in jail and a $3,000 fine.

On appeal, the defendant argued the trial judge should have instructed the jury on self-defense. The defendant did not actually request this instruction at trial. But even if he had, the First District said, no such instruction was justified.

As the appeals court explained, a defendant in cases like this “has the burden of producing some evidence to support a claim of self-defense.” More to the point, self-defense is what is known as a “confession and avoidance” defense. In other words, a defendant can only argue self-defense by admitting to the underlying conduct.

Here, the defendant did not admit to the alleged assault. As noted above, he did not testify at trial. While that was the defendant’s right, he still needed to produce “some evidence” demonstrating he had a “subjective belief” that force was necessary to “protect himself.”

But there was no such evidence, the court said. All of the witnesses who testified, including the defendant’s wife and the police officers who responded to the scene, said it was the wife who was in distress. And while the wife admitted to hitting the defendant on prior occasions, she said she did not do so on the evening in question. In short, there was no basis for the judge to issue a self-defense instruction to the jury.

Speak with a Houston Domestic Violence Defense Lawyer Today

Domestic violence allegations must always be taken seriously. And if you feel that you were the one who was wronged in a confrontation with a spouse, partner, or family member, you need to work with an experienced Houston criminal defense attorney who can assist you in presenting your case in court. Contact the Law Offices of Tad Nelson & Associates today if you need to speak with a lawyer right away. Call 281-280-0100

 

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