Do Police Need to Recover a Weapon to Make a Domestic Violence Charge Stick?
November 11th, 2019 by Tad Nelson in Domestic Violence
Domestic violence allegations can lead to serious felony charges, especially if the accuser states the defendant used or exhibited a deadly weapon–such as a gun or a knife–in the commission of the offense. Such behavior is considered “aggravated assault” under Section 22.02 of the Texas Penal Code. In certain cases, this is a first-degree felony punishable by life in prison.
Houston Man Sentenced to 25 Years for Assaulting Ex-Girlfriend with Knife
Now, you might be wondering: Do prosecutors actually need to produce the weapon as evidence at the defendant’s trial? The short answer is no. While such physical evidence would no doubt be helpful to the prosecution, it is not strictly required to obtain a conviction in a domestic violence case.
A recent decision from the Texas First District Court of Appeals here in Houston, Alexander v. State, provides a helpful illustration of what we are talking about. In this case, a woman (the accuser) told police that her then-boyfriend (the defendant) attacked her and held a kitchen knife to her throat, which she said drew blood. The accuser said she fled the house following this attack and went to a nearby hotel, where she called the police. Although officers observed a “blood stain on the pillow” in the accuser’s hotel room, they did not recover any blood at the alleged scene of the attack or the knife supposedly used by the defendant.
Despite this, the jury found the defendant guilty of aggravated assault of a family member. Applying certain enhancements, the court sentenced the defendant to 25 years in prison. On appeal, the defendant challenged the sufficiency of the evidence against him, noting the absence of the knife or any physical evidence beyond the accuser’s testimony.
But as the First District explained in an opinion affirming the defendant’s conviction and sentence, the accuser’s testimony was more than enough to put him away. The appeals court noted that in criminal cases like this one, the jury “is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the complainant’s testimony.” In other words, the jury was free to believe the accuser’s testimony that the defendant threatened her with a knife, even if there was no such knife introduced into evidence.
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It should be noted the jury in this case also heard a recording taken by a police body camera while officers interviewed the defendant just prior to his arrest. In that recording, the defendant said he “had a knife” and threatened the accuser with it. Obviously, this probably did not help the defendant’s case at trial or before the appeals court.
This also emphasizes a critical lesson for anyone accused of domestic violence: Never speak to the police outside the presence of an attorney. Domestic violence is not something you can “talk your way out of.” Instead, your best bet is to contact a qualified Houston criminal defense attorney who can advise you of your rights. Call the Law Offices of Tad Nelson & Associates today if you live in Houston, Galveston, or League City and need immediate assistance. 281-280-0100.